THE PREMENSTRUAL DEFENDANT: SHOULD SHE BE HELD FULLY RESPONSIBLE FOR HER CRIMINAL ACTIONS?
A thesis submitted to The University of Manchester for the degree of Doctor of Philosophy in the Faculty of Humanities
2019
CAROLINE HENAGHAN
SCHOOL OF SOCIAL SCIENCES
LAW
List of Contents
Abstract ...... 4 Declaration ...... 5 Copyright Statement ...... 5 Dedication ...... 6 Acknowledgements ...... 7 The Author ...... 8 INTRODUCTION……...... 9 Introducing 'The Premenstrual Defendant' ...... 9 CHAPTER ONE - The Premenstrual Defendant: Her Story So Far ...... 17 1.1 A prologue ...... 17 1.2 The premenstrual disorders on trial: a case history ...... 20 i. The nineteenth century defence of 'disordered menstruation' ...... 21 ii. Twentieth century developments and 'the PMS defendants' ...... 25 iii. Premenstrual dysphoric disorder: a new label? ...... 35 1.3 'Premenstrual tensions' in the criminal law: a critique of the literature ...... 37 i. The medical question ...... 39 ii. The legal question ...... 43 iii. The gender issue ...... 47 1.4 Telling stories about the premenstrual defendant: rewriting the narrative ...... 51 i. Telling a 'true' story ...... 54 ii. Deconstructing the master narrative ...... 58 iii. From narrative to normative ...... 60 1.5 Starting a new chapter? ...... 64 CHAPTER TWO - The Medical Narrative and The Menstrual 'Mark' ...... 67 2.1 Proving a point about the premenstrual disorders? ...... 67 2.2 The premenstrual malady: a medical history ...... 69 i. From 'the wandering womb' to 'the irritable uterus' ...... 70 ii. Premenstrual syndrome: a defining moment ...... 73 iii. Premenstrual dysphoric disorder and the DSM-5 ...... 77 2.3 Problematising the PMDD diagnosis? ...... 84 i. The medicalised narrative ...... 86 ii. The stigmatising label ...... 91 2.4 How to treat the premenstrual defendant? ...... 97
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CHAPTER THREE - Conceptualising the Premenstrual Defendant's Criminal Responsibility ...... 100 3.1 In search of the premenstrual defendant's criminal responsibility ...... 100 3.2 The doctrine of criminal responsibility: historically conceived ...... 103 3.3 Hart's capacity paradigm ...... 108 3.4 Criminal responsibility: a historically contingent concept...... 112 3.5 Lacey's criminal responsibility: the conceptual contours ...... 115 i. 'Ideas' ...... 118 ii. 'Interests'...... 121 iii. 'Institutions' ...... 123 3.6 The co-evolution of capacity and character: a 'Jekyll and Hyde' story ...... 124 3.7 Advancing the narrative ...... 130 CHAPTER FOUR - Characterising the Premenstrual Defendant's Criminal Responsibility ...... 136 4.1 A 'trial of character' for the premenstrual defendant ...... 136 4.2 The characterful discourse of criminal responsibility ...... 139 4.3 Constructing the female character of the criminal law ...... 141 4.4 Making excuses for the female characters within the criminal law ...... 148 i. Infanticide as a gender-specific defence ...... 149 ii. Diminished responsibility as a 'gendered' defence ...... 154 4.5 The premenstrual defendant as a female character ...... 160 CHAPTER FIVE - Re-conceptualising Criminal Responsibility: The Case for 'Mitigated Criminal Liability' ...... 165 5.1 A new ending to the premenstrual defendant's story? ...... 165 5.2 Why should we excuse the premenstrual defendant? ...... 167 5.3 Rationalising why we should excuse the premenstrual defendant ...... 171 i. A capacity-based rationale ...... 173 ii. A character-based rationale...... 179 5.4 Mitigating the premenstrual defendant's criminal responsibiltiy ...... 186 5.5 Making a new excuse for the premenstrual defendant ...... 200 CONCLUSION - A new plea for the premenstrual defendant……...... 203 BIBLIOGRAPHY……...... 211 Articles and Books……...... 211 Newspaper and Online Reports……...... 228 Reports, Consultation Papers and Guidelines……...... 229 Cases and Legislation……...... 230 TOTAL WORD COUNT (Excl. prelims & bibliography) - 84, 125 3
Abstract
The Premenstrual Defendant: Should She Be Held Fully Responsible For Her Criminal Actions?
Premenstrual dysphoric disorder (PMDD) is a clinical condition that affects women during a specific phase of their menstrual cycle. Considered to be a more severe form of the premenstrual syndrome (PMS), PMDD can cause symptoms of depression, anxiety and irritability – to a debilitating degree. For decades, debate about the disorder has been mired in medical uncertainty and gender politics, meaning that the difficulties faced by PMDD sufferers have tended to be exacerbated by the socio-scientific complexities of their stigmatising premenstrual condition. This changed in 2013, when PMDD was recognised as a medical disorder and included in the DSM-5 as a depressive mental health condition affecting only women. Still the source of a degree of controversy, this new mental health classification acts as the catalyst for this thesis and prompts the question that doubles also as its title: should the premenstrual defendant be held fully responsible for her criminal actions?
To answer that question, this thesis tells the story of the premenstrual defendant, as studied through the lens of a feminist legal narrative. Situating the premenstrual defendant’s narrative in its historical and contemporary context, this thesis explores the dynamic – between law, medicine and society at large – that has fundamentally shaped her story. Deconstructing the conceptual master narrative of criminal responsibility, it takes a Laceyan approach to assessing the ideas, interests and institutions that are implicated in the responsibility-attribution processes of the English criminal justice system. Casting a critical eye over the contemporary legal landscape, it also unpicks the construction of the premenstrual defendant as a female ‘character’ of the criminal law. Drawing on the premenstrual defendant’s contextualised narrative and bringing the socio- theoretic and normative aspects of her legal story into dialogue with each other, ultimately this thesis proposes a revised model of partial criminal responsibility for the premenstrual defendant. ‘Mitigated criminal liability’ is recommended as a new hybridised form of partial defence/partial criminal responsibility. In establishing the premenstrual defendant as the paradigmatic model of liability, it is argued that other defendants who currently lack a suitable and socially realistic legal defence might also qualify for this mitigating partial excuse. In this way then, the end of the story for the premenstrual defendant of this thesis becomes the start of a revised story of criminal responsibility-attribution practices more generally.
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Declaration
No portion of the work referred to in this thesis has been submitted in support of an application for another degree or qualification of this or any other university or institute of learning.
Copyright Statement
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Dedication
For ‘Bob’ Because I couldn’t have done it without you, Dad
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Acknowledgements
I owe a huge debt of gratitude to my supervisors, Neil Cobb and Alexandra Mullock, for all their assistance in bringing this PhD project to fruition. I consider myself very lucky to have had the benefit of their combined expertise, superb mentoring and kind encouragement over the past several years, and fortunate also to have come to know them as supportive colleagues and close acquaintances. My completion of this PhD would not have been possible without their continued backing, morale-boosting and invaluable guidance along the way. Thank you both, for everything. It has been a fantastic experience and one that I will never forget.
My thanks also to the School of Law for giving me the opportunity to undertake this PhD. Without the award of a funded graduate teaching scholarship, I would not have been able to complete this project – nor to enjoy a return to scholarly life as a mature student. There are many, many people within the School that I have had the good fortune to meet and get to know during my time here, and I am grateful to all those who have helped review my work and point me in the right direction. Special thanks go to two individuals in particular, Jackie Boardman and Stephen Wadsworth, for keeping all things PGR-related running smoothly for me, and for being such lovely people too. Last, but certainly not least, thank you to Cara, Laura, Cath and Kenny. I could not have asked for a better bunch of people to share all my PhD ‘highs and lows’ with – you will all be much missed and fondly remembered.
My family, of course, deserve a very special mention. All can breathe a big sigh of relief now that the PhD experience has come to an end – for my sake, but especially for theirs! Thank you to Yiorgos – for being by my side, through everything. Thank you to my Mum – for having been there for me, always. And thank you to my Dad – for holding my hand every step of the way. Your love and support mean the world to me – this is for you all.
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The Author
Caroline Henaghan, LLB (Hons), MJur (Dunelm), is a member of the Centre for Social Ethics and Policy at Manchester and a teaching associate in the School of Law at The University of Manchester.
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INTRODUCTION
INTRODUCING ‘THE PREMENSTRUAL DEFENDANT’
Oh! Menstruating woman, thou’rt a fiend, From whom all nature should be closely screened!1
This thesis is concerned with the potential criminal responsibility of the premenstrual defendant within English criminal law. As an individual, the premenstrual defendant can be defined as the person – most often a self-identifying woman – who commits a criminal act while suffering from an acute set of premenstrual symptoms, which are severe enough to amount to a clinically recognised category of mental health disorder. As an idea or concept though, the notion of the premenstrual defendant encompasses much more than this, carrying with it a wealth of social meanings, imputations, prejudices and stigma – encapsulated to a degree by the epithet above. This thesis sets out to tell the legal story of the premenstrual defendant, with the aim of unravelling and addressing the issues that have in the past made her such a problematic phenomenon in terms of both the law and within wider society. Tracing her narrative across the course of history and assessing her story within the relevant medico-legal and socio-political contexts, this thesis asks the following questions: (1) should she be held fully responsible in law for the crime that she has committed, and (2) if not, should she be entitled to rely upon her premenstrual disorder as a legally recognised excusatory factor in the commission of her crime?
The socio-medical catalyst for these research questions is the recent classification of a certain set of severe psychological premenstrual symptoms as a distinct sex/gender- specific mental health disorder. After several decades of debate about the status of the premenstrual disorders, in 2013 the American Psychiatric Association recognised the condition of Premenstrual Dysphoric Disorder, or PMDD, identifying it as a separate clinical category in the main text of the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders, the DSM-5.2 Following this development, in 2019 PMDD
1 Anon. Cited in Simone de Beauvoir, The Second Sex (1949) (C Borde and S Malovany-Chevallier trs, Vintage 2011) 201. 2 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-5 (5th edn, American Psychiatric Association 2013) 170. 9
was also included in the Eleventh Revision of the World Health Organization’s International Classification of Diseases, the ICD-11.3 Therefore, in terms of taxonomy at least, the mental health disorder of PMDD now ‘exists’ as a clinical entity. This fact alone has been heralded as a significant development for the estimated two to ten per cent of women who suffer from the condition.4 For these individuals, clinical recognition of PMDD has provided them with the long-awaited validation that the symptomatology of their premenstrual suffering is ‘real’. Despite these recent socio-scientific advancements though, there is still some uncertainty as to the aetiology, means of diagnosis, and potential cure for the medical condition of premenstrual dysphoric disorder. Thus, at present there continues to be a degree of ambiguity, and a number of associated misconceptions, regarding the precise nature of the condition.
Arguably, this ambiguity extends also to the legal status of PMDD. To date, there have been no reported cases where PMDD has been utilised as the basis of a substantive defence in the English courts. Given that it is still unclear how a legal excuse predicated on PMDD would operate if it was to be pleaded in the criminal courts, this thesis seeks to address this issue and contribute to the existing scholarly debate regarding the questions above. Helpfully, previous case law and commentary does provide some guidance on this point. For in fact, the premenstrual defendant already has a ‘history’ within the English criminal law, which is linked most notably to a series of high-profile murder trials from the 1980’s. Each of these trials saw a different premenstrual defendant successfully plead a partial defence of diminished responsibility5 on the basis of their premenstrual syndrome (PMS)6 – the forerunner to PMDD.
Prompting a good deal of controversial debate at the time, the cases involving these premenstrual defendants – R v Craddock/Smith,7 R v English8 and R v Reynolds9 – continued to be the subject of scholarly scrutiny and media interest for some time after. The argument over the most appropriate legal response to the premenstrual defendant was
3 World Health Organization, International statistical classification of diseases and related health problems: ICD-11 (11th Revision, World Health Organization 2019) GA34.41. 4 Nancy Phillips, ‘The Diagnosis of Premenstrual Mood Disorders: Do We Have It Backwards?’ (2019) 23 Case Rep Women’s Health e00126, <10.1016/j.crwh.2019> accessed 1 June 2019. 5 Under the Homicide Act 1957, s 2, as amended by the Coroners and Justice Act 2009, s 52. 6 Raymond Greene and Katharina Dalton, ‘The premenstrual syndrome’ (1953) British Medical Journal 1(4818) 1007. 7 R v Craddock (1981) 1 CL 49; R v Smith [1982] CLR 531. Both cases involved the same premenstrual defendant, who changed her name following her first trial for murder. 8 R v English (unreported) Norwich Crown Court, 10 November 1981. 9 R v Reynolds [1988] Crim LR 679 (CA Crim Div). 10
never fully and satisfactorily resolved though, and in the intervening years the attention given to this controversial topic has waned considerably. The motivation behind this thesis is to bring the hiatus to an end, to re-ignite scholarly interest in the story of the premenstrual defendant and to drive forward the debate about her status in the criminal law. In addition, by setting out and assessing the full extent of the premenstrual defendant’s issues, the aligned objective is to demonstrate why this is an important story to take account of, not only for the premenstrual defendant but also in the interests of other mentally disordered individuals who are caught up in the English criminal justice system. Ultimately, the aim is to provide a credible account as to why the premenstrual defendant should not be held fully responsible for her crime and why she should have available to her within the domestic jurisdiction of England and Wales a new partial defence for her criminal actions. Potentially, this could have important and far-reaching implications within the wider framework of the existing mental disorder defences of English criminal law.
Therefore, by and large, it is the cases of Craddock/Smith, English and Reynolds, referred to above, that represent the foundation for the research conducted in this thesis.10 Essentially, this project has been instigated and driven by a curiosity to understand the potential import of these cases – not only for the perceived benefit of the premenstrual defendant herself, but also their residual impact upon the criminal law more generally. In respect of the methods that I have employed within my study of the premenstrual defendant, it is fair to say that I have gone beyond the pre-established confines of utilising any one individual legal research method to situate my research, and chosen instead to rely upon a strongly interdisciplinary approach, in order to engage with the array of existing material that is relevant to these criminal cases and the wider context of the premenstrual defendant’s story.11 The rationale for my decision to do so is because the telling of this story itself demands the intermingling of many different elements – from the legal to the medical, the social and the political, as well as the historical and cultural aspects of her narrative. Thus, whilst it can be said that the starting point for this research
10 It should be noted that chapter one also includes a small number of references to ‘premenstrual defence’ cases from other jurisdictions, including Scotland. These decisions are discussed here so as to establish the potential prevalence of the premenstrual defence and to provide a comparative overview, rather than representing any attempt at a detailed comparative legal analysis. 11 See further Dawn Watkins and Mandy Burton, ‘Introduction’ in Dawn Watkins and Mandy Burton (eds), Research Methods in Law (2nd edn, Routledge 2018). 11
is necessarily doctrinal,12 closer scrutiny of the relevant sources also recommends a contextualised theoretical framework for both the subject13 and subject-matter14 of this thesis, in order ‘to provide a guideline and a perspective from which [the premenstrual defendant] can be described in a meaningful way’.15 In this respect, the independent theoretical framework for my research ‘consists of concepts, categories and criteria that are not primarily borrowed from the legal system itself’,16 and thereby incorporates an amalgamation of ‘historical studies, socio-legal research [and] philosophy’17 all of which are important elements within the research carried out in this thesis. In addition, bearing in mind the implicitly gendered nature of my research questions, then the theoretical framework that I construct needs to incorporate a critical legal ‘attitude’,18 and to engage with a more explicitly feminist approach, particularly with regard to the assertion that ‘the chosen methods and the practicalities of the research, may either enable or inhibit the voices of women being heard’.19 As a result, given the range of methods referred to here, it is clear that I shall need to pay close attention to the way in which I weave each one into the fabric of my research. However, cognisant as I am of the complexity that this interdisciplinary approach might entail, I would argue that this blend of approaches is the most appropriate design for answering the research questions set out above – if not in fact a particular strength of this thesis, in terms of the breadth and interdisciplinarity of the methods that I use to assess whether the premenstrual defendant should be held fully responsible for her criminal actions.
Here then, I map out how I intend to argue the case for this revised approach to the premenstrual defendant’s story. The first step in this project is to critically assess the contours of past legal debate and previous medical developments. These key areas form the focus for my analysis in the first two chapters of this thesis. In chapter one, I
12 As tends to be the case for most legal research projects, according to Terry Hutchinson, ‘Doctrinal Research: Researching the Jury’ in Watkins and Burton (n 11) 10. 13 In essence, the premenstrual defendant. 14 Primarily, the concept of criminal responsibility. 15 Pauline C Westerman, ‘Open or Autonomous? The Debate on Legal Methodology as a Reflection of the Debate on Law’ in Mark Van Hoecke, Methodologies of Legal Research: What Kind of Method for What Kind of Discipline? (Hart Publishing 2011) 90. 16 Ibid 94. 17 Ibid. For a helpful discussion on historical legal research methods, see Philip Handler, ‘Legal history’ in Watkins and Burton (n 11), and on socio-legal research see Fiona Cownie and Anthony Bradney, ‘Socio- legal research: a challenge to the doctrinal approach’ in the same. 18 Paul Mikkinen, ‘Critical legal “method” as attitude’ in Watkins and Burton (n 11). 19 Watkins and Burton (n 11) 6. See further, Vanessa Munro, ‘The master’s tools? A feminist approach to legal and lay decision-making’ in Watkins and Burton (n 11). 12
comprehensively scrutinise the legal story of the so-called ‘premenstrual defence’.20 I do so by first assessing the case history of those trials which have featured a premenstrual defendant as their central character, and then conducting a review of the relevant literature thrown up by the decisions in these cases. This literature review is organised thematically around the central and overlapping issues that have previously taxed theorists to the greatest degree – in particular, the medical question and the legal question. Building on these themes, in this chapter I highlight also the overarching importance and impact of gender for both these questions. Here, I detail also the feminist legal narrative approach that has guided the direction of this research project overall, and which has helped me to construct an appropriate analytical framework within which to assess the complex interplay of narrative strands that make up the premenstrual defendant’s story.
Chapter two focuses on the medical question – the strand of narrative thread that pertains more specifically to the premenstrual disorders and the empirical issues concerning their existence. The format here is part historical survey and part critique. Thus, the first half of this chapter tracks the historical development of the scientific ideas relating to the premenstrual disorders. The second half looks more closely at the social discourse which surrounds the science. Whether this be in relation to unresolved arguments about the socially constructed nature of the premenstrual disorders, or concerns relating to the medicalisation and stigmatisation of those individuals who are diagnosed with this type of condition, it is clear that the issues which relate to the medical question, do in fact go beyond the purely medical. Therefore, whilst PMDD might have achieved the socio- scientific status of a recognised medical condition, doubts persist about the precise nature, cause and individualised consequences of the disorder. This then requires careful consideration as something that could still cast a shadow over the use and operation of PMDD as a potential excuse to criminal liability.
In chapters three, four and five, I focus on the legal question of the premenstrual defendant’s criminal responsibility. I start in chapter three by conceptualising her status within the established parameters of the English law’s concept of criminal responsibility.
20 Throughout this thesis, I shall adopt the terms ‘premenstrual defence’ or ‘PMS defence’ – partly for the sake of brevity, but essentially also to highlight the main medical and legal concepts encapsulated within this terminology. Past commentators have adopted a similar ‘shorthand’ approach by referring to the ‘PMS defense’ [sic], e.g., Lawrence Taylor and Katharina Dalton, ‘Premenstrual Syndrome: A New Criminal Defense’ (1982) 19 California Western Law Review 269, 280. However, it should be noted that I am not using these terms to argue for recognition of the premenstrual defence as a separate and stand- alone defence in the strictly legal sense. 13
Once again there is a historical slant to this chapter, as I track the traditional doctrinal developments relating to criminal responsibility within the English legal tradition. Acknowledging the normative importance of Hart’s capacity paradigm as a core part of the established rules of criminal liability, here I also go in search of something more – a more socially realistic account of criminal responsibility, within which to fully assess and appreciate the story of the premenstrual defendant. This comes in the form of Nicola Lacey’s historicised and contextualised hypothesis about the ‘socio-theoretic’ contours of criminal responsibility-attribution practices, and her conceptualisation of criminal responsibility per se as an idea that is impossible to separate from the wider social practices of criminalisation.21 In addition, Lacey’s account is one which pays heed to the legitimating and coordinating functions of the ideas, interests and institutions of the criminal law, and one which pursues ‘a socially-realistic account of normativism’22 within the operation of the law’s established criminal responsibility-attribution practices. Crucially, I consider this modern re-conceptualisation of responsibility to be fundamental to the aims and objectives set out in this thesis.23 Therefore, taking Lacey’s scholarly lead, I assess the premenstrual defendant’s criminal responsibility within the ‘socio- institutional’ context24 of the extra-legal factors that have had such a profound influence on her story so far. In this way, Lacey’s account helps in turn to rationalise the socio-legal approach that I take in this thesis to the question of the premenstrual defendant’s criminal responsibility as a normative concern.
Lacey’s account of criminal responsibility does something else also. It highlights her hypothesis of the co-evolution of the ideas of capacity and character within the criminal law, and her proposition that there is still a ‘subterranean’ conception of character at work within modern-day criminal responsibility-attribution practices.25 This then provides the basis of the discussion in chapter four, where I consider in more detail the characterisation of the premenstrual defendant’s criminal responsibility. Drawing together a number of Laceyan threads of legal discourse,26 I attempt to advance the debate, by analysing this idea of character specifically in relation to my own conception of the female character
21 Nicola Lacey, In Search of Criminal Responsibility: Ideas, Interests and Institutions (OUP 2016) ix. 22 Ibid 186. 23 A point that I elaborate on in more detail at p 101 et seq. 24 Ibid 187. 25 Nicola Lacey, ‘Psychologising Jekyll, Demonising Hyde: The Strange Case of Criminal Responsibility’ (2010) 4 Criminal Law and Philosophy 109. 26 Lacey (n 21). Also: Nicola Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Hart Publishing 1998); Nicola Lacey, Women, Crime, and Character: From Moll Flanders to Tess of the d’Urbervilles (OUP 2008). 14
within the criminal law. Assessing once again the historical background to this aspect of the story, I argue that ideas about female criminality are further complicated by the way in which the criminal law judges the characters of those women who come before the courts. As ‘sexed’ subjects,27 women within the criminal justice system have long been ‘character’-ised in a particular way and the gendered narratives of the stories that are told about these women frequently can have an impact on the substantive criminal responsibility-attribution decisions of judge and jury, and the exercise of discretion in the criminal justice system.28 In this chapter, I assess also how this issue has been made more complex by the way in which ideas about the female character have been translated within the substantive operation of the criminal law defences of infanticide and diminished responsibility. All of this discussion leads me to reflect upon and draw conclusions about the appropriateness of adopting a gender-specific premenstrual defence at this time, given the inherent difficulties associated with establishing a premenstrual defence that is grounded in or linked to the gendered character of the premenstrual defendant.
Having regard to the complexities of character and the ways in which this could affect the viability of a premenstrual defence per se, in chapter five I move on to evaluate alternative options for the premenstrual defendant. Considering the current legal landscape, it would seem that there is an impetus for potential reform of the criminal justice system for those individuals who suffer from a mental health disorder.29 Turning my attention away from a character-based approach then, I assess instead the possibility of a new capacity-focused legal defence for the premenstrual defendant. Drawing on the discussion in previous chapters, here I argue in favour of a revised approach to the existing partial defence structure within the criminal law. Coming at the issue from a novel and previously unexplored perspective, I examine how the concept of mitigation might offer a fruitful avenue for further discussion and potential development of the partial defences.30 Finally, I fix on a proposal for a new partial defence of ‘mitigated
27 Nicola Lacey, ‘On the subject of sexing the subject’ in Ngaire Naffine and Rosemary J Owens (eds), Sexing the Subject of Law (Sweet and Maxwell 1997). 28 Susan SM Edwards, Women on Trial: A Study of the Female Suspect, Defendant, and Offender in the Criminal Law and Criminal Justice System (Manchester University Press 1984). 29 Law Commission, Unfitness to Plead Law Com No 364 Vol 1: Report; Vol 2: Draft Legislation (Law Comission 2016); Law Commission, Criminal Liability: Insanity and Automatism (Law Commission 2013). 30 Currently, the accepted usage of the concept of mitigation is restricted to the sentencing stage of criminal proceedings. As the title of this thesis implies though, the focus of my research is on the responsibility-attribution processes and respective defences of the substantive criminal law, rather than being concerned with either punishment theory or sentencing practice. Therefore, the discussion in chapter five on both mitigation and any corollary punitive concepts, e.g., the consequent labelling and criminal stigmatisation of the premenstrual defendant, is limited to the way in which these ideas link up 15
criminal liability’ – something that I consider could contribute to the ongoing process of reform of the mental disorder provisions within the English criminal law. This new legal mechanism, I argue, would provide an appropriate option not only for the premenstrual defendant, but also for a number of other mentally disordered individuals who might be equally disadvantaged by the restrictive ambit of the current mental disorder defences. Thus, in bringing the premenstrual defendant’s story to an end, at the same time I also open up a whole new ‘chapter’ for further debate.
For the time being though, I draw this introduction to a close by reiterating the overall importance of this story – for the premenstrual defendant. To underscore this point, I include the following extract, written by a premenstrual sufferer – known only as ‘P.W.’ – nearly thirty years ago:
The black cloud descends ten days before my period and drives me to drink. So far I’ve abused dozens of people, I tried to kill myself by crashing the car, setting fire to the house, and attacking my husband verbally and physically until he retaliated and put me in hospital. This led to a divorce, another breakdown, then a reconciliation. I become so depressed, something takes over me and I become demented. This month I’ve gone through hell and today, the first day of bleeding, I feel I have come out of the depths of my private hell and am glad to be here – but for how much longer can I cope.31
This thesis then, tells the story of the premenstrual defendant – for the sake of premenstrual defendants like ‘P.W.’. By necessity, the legal narrative that I lay out here is wide-ranging, far-reaching and conceptually complex. It is problematic and perplexing, multi-layered and multi-faceted – and takes in several narrative twists and turns along the way. But this is a story that needs to be told, to try to make legal sense of the problem that is ‘the premenstrual defendant’, and to attempt to re-write her legal narrative to bring about a better ending to her story.
with my recommendations for a new partial defence of ‘mitigated criminal liability’. I do not make any claims in this thesis about the respective punishment and sentencing per se of the premenstrual defendant. However, for an extended and insightful debate about the advantages of a revised feminist approach to punishment, see Marie Fox, ‘Feminist Perspectives on Theories of Punishment’ in ‘Donald Nicolson and Lois Bibbings (eds), Feminist Perspectives on Criminal Law (Cavendish Publishing 2000). 31 Katharina Dalton, Premenstrual Syndrome Goes to Court (Peter Andrew 1990) 78.
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CHAPTER ONE
THE PREMENSTRUAL DEFENDANT: HER STORY SO FAR
Janet is a thirty-year old housewife living in London, England. She is in most respects a ‘normal’ individual, except that seven days before the beginning of her menstrual periods she begins to experience irritability and tension which accelerate into aggressive and violent behavior [sic] toward her husband, her children, and even herself. This monthly reaction began when Janet was a teenager: in the intervening years she has attempted suicide by ingesting overdoses of aspirin and Valium, by slashing her wrists, by stabbing herself and by jumping from a train. Each of these suicide attempts occurred during her premenstrual cycle. On the first day of menstruation, however, all symptoms ease and she becomes calm, friendly and rational.1
1. A prologue
The vignette above is taken from an article entitled Premenstrual Syndrome: A New Criminal Defense?, published in 1982 by the then widely regarded expert on premenstrual disorders – Dr Katharina Dalton2 – in collaboration with Lawrence Taylor, an American academic and former lawyer. The case study of ‘Janet’ is one of three such stories of premenstrual suffering that are referred to in the article’s introductory commentary.3 Each of these stories is cited in support of Taylor and Dalton’s hypothesis of a link between some women’s premenstrual symptoms and a propensity towards criminal and deviant behaviour at certain points during their menstrual cycles.4 The main finding of their research is that ‘PMS is valid as a criminal defense [sic], but . . . that several issues arise concerning its use and operation’.5
1 Lawrence Taylor and Katharina Dalton, ‘Premenstrual Syndrome: A New Criminal Defense’ (1982) 19 California Western Law Review 269, 269. 2 Ivan Oranksy, ‘Obituary: Katharina Dorothea Dalton’ (2004) 364 (9445) Lancet (London, England) 1576. 3 They refer also to ‘Margaret’, a teacher who said that her premenstrual symptoms caused her to hit her own children, and ‘Anne’ who described her ‘monthly changes’ as ‘a “Dr. Jekyll to Mr. Hyde” transformation’, Taylor and Dalton (n 1) 270. 4 Katharina Dalton, ‘Menstruation and Crime’ (1961) II British Medical Journal 1752. 5 Taylor and Dalton (n 1) 278. 17
Dalton and Taylor’s pivotal article came about as a response to the decisions in two murder trials in the English courts in 1981: R v Craddock6 and R v English.7 Both female defendants in these separate cases had relied upon the expert medical evidence of Dr Dalton to successfully plead the partial defence of diminished responsibility,8 thus avoiding liability for murder. Despite the still only limited medical knowledge about female premenstrual symptoms, Dalton’s expert testimony was instrumental in persuading the courts that each of the women suffered from the ‘premenstrual syndrome’ or ‘PMS’.9 Her evidence was that the negative effects of the premenstrual syndrome had impacted so substantially upon each defendant’s psychological state and mental functioning, that it was this which had caused them to kill. This established the possibility of pleading the premenstrual syndrome as the basis of a potential criminal defence within modern English law.
A strident debate about this newly-labelled ‘premenstrual defence’ soon followed, with the discussion continuing to rumble on for some years after.10 Scholarly analysis and media coverage from the time questioned the legal and social acceptability of the recognition and apparent endorsement of a premenstrual defence by the English courts.11 The controversial decisions in both Craddock and English seemed to imply the validation of a woman’s premenstrual symptoms as the basis for a new legal defence, albeit only a partial defence in the circumstances. This was despite the fact that there was no widespread medical consensus about the aetiology, means of diagnosis or indeed cures for the premenstrual syndrome.12 Considered in the context of the established doctrines
6 R v Craddock (1981) 1 CL 49. 7 R v English (unreported) Norwich Crown Court, 10 November 1981. 8 Under the Homicide Act 1957, s 2, now amended by the Coroners and Justice Act 2009, s 52. 9 Raymond Greene and Katharina Dalton, ‘The premenstrual syndrome’ (1953) British Medical Journal 1 (4818) 1007. 10 For example, Susan Edwards, ‘Mad, Bad or Pre-menstrual’ (1988) 138 New Law Journal 456. The debate also spread to other jurisdictions: (United States) Elizabeth Holtzman, ‘Premenstrual Syndrome: The Indefensible Defense’ (1984) Harvard Women’s LJ 1; Kay A Heggestad, ‘The Devil Made Me Do It: The Case Against Using Premenstrual Syndrome as a Defense in a Court of Law’ (1986) 9 Hamline L Rev 155; (Canada) E Meehan and K MacRae, ‘Legal Implications of Premenstrual Syndrome: A Canadian Perspective’ (1986) 135 CMAJ 601; (Australia) B McSherry, ‘The Return of the Raging Hormones Theory: Premenstrual Syndrome, Postpartum Disorders and Criminal Responsibility’ (1993) 15 Sydney Law Review 292. 11Lillian Apodaca and Lori Fink, ‘Criminal Law: Premenstrual Syndrome in the Courts’ (1984) 24 Washburn Law Journal 54; M Berlins and T Smith, ‘Should P.M.T. be a woman’s all-purpose excuse?’, The Times (London), 12 November 1981, 12. 12 ‘Despite 50 years of study, there is still surprisingly little known about menstrually related mood disorders; questions of etiology and treatment are largely unanswered’, David R Rubinow and Peter Roy- 18
of criminal responsibility in the English courts,13 the premenstrual defence was a controversial legal construct.14 Not only did it unsettle the status quo, but prima facie the medical evidence presented in Craddock and English seemed to establish the validity of an entirely new sex-specific legal excuse.15 The premenstrual defence allowed women to plead that their actions were a direct result of their internal female physiology, and that their criminal behaviour could be blamed on biology, rather than their own free will and capacity for action.16 Numerous doubts were raised about this ‘new’ phenomenon. On the one hand, it seemed to cast a shadow over women’s agency and their status as legal subjects.17 On the other, there was a concern that the premenstrual defence could be used by women everywhere as a convenient excuse to avoid liability for their actions, thus damaging women’s reputations in general to an even greater extent.18 Despite these objections though, the foretold increase in cases involving women pleading the premenstrual defence did not in fact materialise and, after the initial rush to opprobrium on the part of its detractors, the premenstrual defence largely faded into obscurity. Rarely now does it feature in contemporary case law or legal discourse, raising speculation as to the reasons why the defence has faded into relative obscurity in the intervening years.19 Thus, one of my aims in this thesis is to revitalise scholarly interest in the defence, by recounting the ‘story’ of the premenstrual defendant, and re-evaluating the question of her criminal responsibility through a modern legal lens.
The first step in this enterprise is to position the premenstrual defendant within the relevant legal – as well as the scientific, political and social – contexts that have helped to shape her story so far. To establish this contextualised framework, in this chapter I
Byrne, ‘Premenstrual Syndromes: Overview from a Methodologic Perspective’ (1984) 141 American Journal of Psychiatry 163, 169. 13 Primarily, the classic statement of a subjectivist capacity-based concept of criminal responsibility: HLA Hart, Punishment and Responsibility: Essays in the Philosophy of Law (2nd edn, OUP 2008). 14 With Helena Kennedy QC observing that, ‘most defence lawyers will be happy to exploit PMT, leaving aside the impact of this for women generally’, Helena Kennedy, Eve Was Framed: Women and British Justice (Vintage 1993) 24. 15 cf the Infanticide Act 1938, s 1. 16 For a general discussion on this point, see Hart (n 13) ch 2. 17 Hilary Allen, ‘At the Mercy of Her Hormones: Premenstrual Tension and the Law’ in Parveen Adams and Elizabeth Cowie (eds), The Woman in Question (Verso 1990). 18 Lorraine Chait, ‘Premenstrual Syndrome and Our Sisters in Crime: A Feminist Dilemma’ (1986) 9 Women’s Rights Law Reporter 267. 19 The most recent literature on the premenstrual defence dates from 2012, therefore prior to the classification of PMDD in the DSM-5: Rosanna Langer, ‘That Time of the Month: Premenstrual Dysphoric Disorder in the Criminal Law – Another Look’ (2012) 1 International Journal of Criminology and Sociology 29. 19
conduct a comprehensive review of the various developments which have impacted on the premenstrual defence debate, with this inquiry divided into the following sections. The first part consists of a historical survey of the legal cases where women’s premenstrual disorders have been raised in evidence as a defence mechanism or as mitigation for their crimes. As I shall demonstrate, such references do in fact pre-date the decisions in Craddock and English, with the timeline of relevant case law also extending forward into the twenty-first century. I then conduct a review of the literature that these cases have inspired. This is organised thematically, in a bid to reflect the contents and tone of previous scholarly work on the premenstrual defence. Split into three main categories, these comprise: an overview of critics’ concerns regarding the clinical status of the premenstrual disorders as recognised medical conditions; an analysis of the existing framework of legal defences potentially available to the premenstrual defendant; and an examination of the nature of the socio-political objections that have previously been raised against the use of a sex-specific premenstrual defence. Taking all these elements into account, in the last section I set out my proposals for re-telling the story of the premenstrual defendant, and how I intend to advance the debate surrounding her legal narrative. First though, I must situate my premenstrual defendant within her relevant legal timeline. That is the focus of the section which follows.
2. The premenstrual disorders on trial: a case history
Contrary to the beliefs of many late twentieth century commentators – that the decisions in Craddock and English had established an entirely new form of legal excuse – a variant of the premenstrual defence had already found expression in the English criminal justice system over one hundred years earlier. It is these nineteenth century examples that I turn my attention to first, in this chapter. Often overlooked in the literature,20 the archival accounts of these cases are important for understanding the way in which the courts dealt with the premenstrual defendants who came before them. In addition, they provide an insight into the growing influence of medical opinion, on what were essentially legal decisions about a defendant’s criminal responsibility.
20 cf ‘Premenstrual Syndrome’ in ‘Fiona E Raitt and M Suzanne Zeedyk, The Implicit Relation of Psychology and Law: Women and Syndrome Evidence (Routledge 2000). 20
i. The nineteenth century defence of ‘disordered menstruation’
Even prior to the nineteenth century, science had begun to develop an obsession with the female body. Not only was a woman’s sexuality the subject of increased scrutiny at that time, but in addition, her reproductive capacity and the perceived mystery of her menstrual cycle were part of the female enigma that was thought to be in need of scientific decoding. According to the physicians of the day, ‘Menstruation acted as an external instrument, a barometer by which doctors could read the internal health, mental as well as physical, of their patients’.21 Alongside this corporeal fascination with a woman’s menstrual cycle, there evolved also the view that a woman’s reproductive organs were intimately connected to manifestations of both her intellect, and her morality. By the mid nineteenth century, Victorian doctors had identified a specific diagnosis of what they termed ‘disordered menstruation’. Although this referred more specifically to a perceived physiological problem with the general circulation of a female patient’s blood, they also believed that an obstruction to a woman’s menstrual flow meant that her blood could ‘be forced to flood the brain and thus lead to irreparable psychological breakdown’.22
This view of women’s health and wellbeing might account for some of the medical theories and hegemonic constructions of both female psychology and female criminality which came to the fore during the nineteenth century.23 But these medical ideas need also to be considered within the framework of the prevailing moralism of the time, and to be understood in relation to Victorian society’s quintessential notions of womanhood and femininity. Any deviation from the contemporary social mores and norms of acceptable female behaviour, it was thought, could only be explained by reference to an underlying female pathology.24 This was particularly so in relation to women who found themselves in court on a criminal charge – and this was how medical notions about ‘disordered menstruation’ and its corollary diagnoses, became a feature of nineteenth century legal
21 Sally Shuttleworth, ‘Female circulation: medical discourse and popular advertising in the mid-Victorian era’ in Mary Jacobus, Evelyn Fox-Keller and Sally Shuttleworth (eds), Body/Politics: Women and Discourse of Science (Routledge 1990) 47. 22 Ibid 48. 23 Bruce MZ Cohen, ‘Women: Reproducing Patriarchal Relations’ in Bruce MZ Cohen Psychiatric Hegemony: A Marxist Theory of Mental Illness (Palgrave Macmillan 2016). Women have long been thought to be naturally predisposed to mental disorder and ‘hysteria’, a word which itself originates from the Greek word for a woman’s uterus/womb, ‘hystera’, Elaine Showalter, Hystories: Hysterical Epidemics and Modern Culture (Columbia University Press 1997). 24 Lucia Zedner, Women, Crime, and Custody in Victorian England (Clarendon Press 1991). 21
discourse, as demonstrated in the contemporary premenstrual defence cases referred to below.
In the first instance, Edwards cites a case of pyromania dating back to 1833, where the court was asked to consider the extent to which the defendant’s ill-health and ‘the non- appearance of her catamenia or menstrual period’ might have been a contributory factor in her crime.25 Other examples from the archives include Martha Brixey, who came to be known as ‘The Greenwich Murderess’. In 1845 she had killed her employer’s infant child by slashing his throat, with no apparent motive for the crime and having made no attempt to escape afterwards. She was charged with wilful murder, but acquitted by the court on a plea of insanity due to the ‘temporary suspensions of the action of nature’ and ‘a stoppage of her courses’, which were said to have made her ‘act oddly at times’ and behave extremely out of character.26 That same year the records refer also to a woman named Ann Shepherd, who had been charged at Carlisle Quarter Sessions for stealing a feather boa. Evidence was submitted to the court that at the time of her menstruation, she underwent ‘personality changes and eccentricities’. The defendant’s brother spoke on her behalf about her ‘delusions’, saying that once the ‘paroxysm’ had passed, she would get better in three or four days. The court found that she was suffering from ‘temporary insanity from suppression of the menses’ and she too received an acquittal.27 Then, in 1851 Amelia Snoswell was brought before Maidstone Assizes for murdering her infant niece. After the court heard medical evidence of her ‘disordered menstruation’, she too was acquitted on grounds of insanity.28 Some years after, when Constance Kent confessed to killing her infant stepbrother in 1865, it was once again ‘disordered menstruation’ and the ‘peculiarities of her constitution’ that were thought to have played a role in her commission of the crime.29 The final record from this era refers to a Mrs Castle, a wealthy American tourist, who had been caught shoplifting in London in 1896 and, because her
25 Susan SM Edwards, Women on Trial: A Study of the Female Suspect, Defendant and Offender in the Criminal Law and Criminal Justice System (Manchester University Press 1984) 86. Edwards does not give the outcome or any further information about the case. 26 London Medical Gazette (1845) 169. 27 PT D’Orban, ‘Medicolegal aspects of the premenstrual syndrome’ (1983) 30 Brit J Hosp Med 404. 28 Susan SM Edwards, Female Sexuality and the Law: A study of constructs of female sexuality as they inform statute and legal procedure (Martin Robertson 1981) 94. 29 Journal of Mental Science (1865) 431. 22
kleptomania was said to have resulted from ‘suppressed menstruation’, she too was acquitted.30
These cases are the most frequently cited examples of the early use of a premenstrual defence. Notably though, they are generally referred to in the medico-legal literature, as historical artefacts, and curiosities of misguided medical opinion, rather than as having any particularly persuasive impact in relation to the corresponding modern discourse. Arguably, on a retrospective assessment of these cases, there are several worthwhile observations to be made. First, the premenstrual defence was employed – in some form or another – long before it was raised in the twentieth century cases of Craddock and English. Second, as far back as the nineteenth century there was a discernible medical view on ‘disordered menstruation’ and its associated female-specific conditions.31 And third, this medical opinion was used as credible evidence to substantiate several female defendants’ claims to criminal non-responsibility. In this last respect, it is also instructive to note how the legal cases involving these women quickly became themselves ‘a matter of scientific interest’,32 and were often reported in lurid detail in the medical journals of the time. Arguably, this ‘scientific interest’ was an early indication of the direction that the premenstrual defence was later to take and demonstrates the first moves towards an intertwining of the medical and legal components of the premenstrual defence.
Certainly, medical opinion as to a hypothesised link between menstruation and female criminality continued to attract followers during the nineteenth century. In addition to the legal case reports from this era, in 1890 Icard wrote that he had observed the following crimes in women during their menstruation: ‘kleptomania, pyromania, dipsomania, homicidal mania, suicidal mania, erotomania, nymphomania, delirious insanity, impulsive insanity, morbid jealousy, lying, calumny, hallucinations and melancholia’.33 Four years on from Icard’s study, the renowned criminologists Lombroso and Ferrero reported on eighty women who had been arrested for ‘resistance to public officials’,
30 Cited in Raitt and Zeedyk (n 20) 114. 31 I develop this historical medical analysis in chapter two. 32 Journal of Mental Science (1865) 430. 33 Séverin Icard, La femme pendant la periode menstruelle (1880), cited in Katharina Dalton, Premenstrual Syndrome Goes to Court (Peter Andrew 1990) 75. 23
seventy-one of whom were said to have been menstruating at the time of their offence.34 Finally, in a retrospective account from 1950, Pollak cites several other nineteenth, and early twentieth, century European writers who had considered there to be, ‘an ostensibly positive association between the menstrual flow and a variety of anti-social, criminal behaviour’.35
I pause briefly here, to review the potential meanings of these historical legal cases and the nineteenth century criminological studies referred to above. While these examples from the literature are instructive as a chapter in the history of the premenstrual disorders, they need also to be viewed in the light of feminist debate about their inherently problematic issues in relation to the issue of gender. Carol Smart, for one, has questioned the foundational premise of the idea that biology can be used as a principal explanation for female criminality.36 As she says, ‘the suggestion that women are controlled and determined by their biology, denies women the characteristics of free, autonomous beings, and offers a “justification” for unequal treatment’.37 In addition, Sandra Walklate contends that the influence of these nineteenth century ideas continues to be felt today, and that as a result, modern research still tends to subscribe to the view that the biological differences between women and men are immutable.38 Entrenched theories of this type, which assert that women are controlled and determined by their biology, can thus lead to the unwelcome consequence that, ‘all women are stigmatised by their natural bodily functions’.39 This is an important point that I shall return to several times in this thesis – first, in chapter two when I discuss the impact of stigma overall, and then once again, in chapter four where I pick up this argument in the context of a discussion about the characterisation of women within the criminal law. Despite the concerns raised by some feminists though, here I would argue that there is still a strong justification for acknowledging these historical cases as part of the timeline of the story of the
34 Cesare Lombroso and Guglielmo Ferrero, The Female Offender (Fisher and Unwin 1895), cited in Peter Vanezis, ‘Women, Violent Crime and the Menstrual Cycle: A Review’ (1991) 31 Medicine, Science and the Law 11, 11. 35 Bruce Harry and Charlotte M Balcer, Menstruation and Crime: a critical review of the literature from the clinical criminology perspective (1987) 5(3) Behavioural Sciences and the Law 307, citing Otto Pollak, The Criminality of Women (University of Pensylvania Press 1950). 36 Carol Smart, Law, Crime and Sexuality: Essays in Feminism (SAGE Publications 1995) ch 2. 37 Chris Docherty, ‘Female Offenders’ in Sheila McLean and Noreen Burrows (eds), The Legal Relevance of Gender: Some Aspects of Sex-Based Discrimination (Macmillan Press 1988) 174. 38 Sandra Walklate, Gender and Crime: An Introduction (Prentice Hall 1995) 26. 39 Docherty (n 37) 175. 24
premenstrual defendant. On the one hand, they demonstrate that the premenstrual defence is not solely a legal construct of the late twentieth century. On the other, they lay the groundwork for the next set of developments in this narrative – specifically, the premenstrual defence cases which came before the courts almost one hundred years later. It is the stories of these ‘PMS defendants’ that I turn my attention to in the next section.
ii. Twentieth century developments and ‘the PMS defendants’
The premenstrual disorders dramatically re-entered the courtroom in their modern guise of the premenstrual syndrome (PMS) in the late twentieth century. Although the nomenclature had now changed,40 all the women who came before the courts seemed to display similar types of premenstrual symptoms to their nineteenth-century forebears. It was this series of high-profile legal cases which came to define a good deal of what is known about the premenstrual disorders today,41 for the stories of these women helped to generate much of the modern scientific debate that was to follow.42 Consequently, the cases set out below are highly significant in two respects. Not only did they influence the contemporary legal debate, but they helped to increase social awareness about the premenstrual disorders and precipitated several subsequent medical developments.43 Here I examine the stories of these women in more detail.
The first story is that of Sandra Craddock, later Sandie Smith, who whilst walking home one night from the bar where she worked, stabbed to death her female colleague – seemingly without reason.44 Aged twenty-eight at the time, Craddock already had a long history of violent and deviant behaviour, with over forty-five previous convictions for criminal damage, assault, and other offences of violence. She had also attempted suicide multiple times and had been repeatedly diagnosed by psychiatrists as having an unstable personality, although doctors had never been able to fully establish the exact nature of her mental health condition. While Craddock was on remand awaiting trial for murder, she
40 Greene and Dalton (n 9). 41 See discussion in chapter two. 42 Benson E Ginsburg and Bonnie Frank Carter (eds), Premenstrual Syndrome: Ethical and Legal Implications in a Biomedical Perspective (Springer US 1987). 43 Culminating in the classification of premenstrual dysphoric disorder (PMDD) as a mental health condition, American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-5 (5th edn, American Psychiatric Association 2013). 44 Craddock (n 6). 25
attempted to escape, tried to strangle another prisoner, slashed her wrists, assaulted a warden and tried to hang herself. Her father observed that these incidents, and all her previous offences, followed a distinct and recurrent twenty-nine-day pattern,45 leading him to speculate that her criminality was in some way connected to her menstrual cycle.
Dr Katharina Dalton46 was called upon to examine Sandra Craddock and, following hormonal testing, she diagnosed her with a deficiency of the hormone progesterone.47 Dalton appeared as an expert medical witness at Craddock’s trial and gave evidence that, in her medical opinion, the murder of Craddock’s co-worker, as well as her historical convictions, were all the result of a severe case of premenstrual syndrome. She also suggested to the court that hormone replacement therapy involving the administration of high dose progesterone would lead to a remission of Craddock’s premenstrual symptoms and the stabilisation of her personality. The court accepted Dalton’s evidence and Recorder James Miskin put the case back for three months, to give Dalton time to prove her claim and for the court to monitor the effect of this treatment. At the end of the period of adjournment, Dalton reported back to the court that Craddock had responded extremely well to regular injections of progesterone and that her violent outbursts had subsided. The prosecution duly accepted Craddock’s plea of diminished responsibility and she was convicted of manslaughter. In addition, her premenstrual syndrome was taken into account as a mitigating factor during her sentencing. Craddock received only a three-year probationary period, which was conditional upon her continuing to receive regular treatment from Dr Dalton, and she avoided any further punishment for her offence.
Craddock was back in court just one year later though, this time under her assumed new identity of Sandie Smith.48 On this occasion she had been charged with carrying an offensive weapon and threatening to kill a police officer. At the trial she argued that the officer in question had insulted her three years earlier and that she bore a longstanding
45 Established by reviewing Smith’s diaries and her prison records. 46 At the time, Dalton was regarded as the foremost medical expert on the premenstrual syndrome. She had founded the first PMS clinic, written extensively about the disorder, and appeared in a 1977 television programme entitled, Pull Yourself Together Woman which was watched by an estimated 11 million viewers. 47 Dalton theorised that PMS was caused by a progesterone deficiency: Katharina Dalton, The Premenstrual Syndrome and Progesterone Therapy (2nd edn, Heinemann Medical 1984). 48 R v Smith [1982] CLR 531. 26
grudge against him, which had motivated her to act in the ‘bizarre’ way that she did.49 Evidence showed that she had made several threatening phone calls, sent anonymous letters to him and, on the day of her arrest, she had been lying in wait for him outside his station, brandishing a knife. Once again Dalton, who had continued to act as Craddock/Smith’s treating physician, testified on her behalf. She gave evidence that she had been in the process of gradually reducing Smith’s progesterone dose at the time of the new offence and that this could have caused a renewal of her erratic behaviour. Dalton said also that, following Smith’s arrest, she had reinstated her regime of large-dose progesterone therapy and had since witnessed a significant improvement in Smith’s mood swings and personality changes.
Electing not to plead insanity, Smith chose instead to argue the defence of automatism, stating that her actions in the circumstances had been involuntary and caused by her premenstrual disorder. However, the trial judge directed the jury not to consider automatism and Smith was duly convicted and placed on probation. She appealed on the basis that the judge had been wrong in law not to declare that there should be ‘a special defence’ of PMS available to all women. According to the report of proceedings in the Court of Appeal (Criminal Division), ‘The appellant . . . invited the court to declare that a special defence was available to a woman suffering from pre-menstrual tension if the jury decided on the evidence that she was morally blameless’.50 Her appeal was dismissed, with the Court of Appeal deciding that, ‘there is no question of automatism providing a defence in this case . . . this woman knew exactly what she was doing, intended to do it but was led into doing it because the dark side of her nature appeared to control the impulse’. In addition, they stated that ‘automatism as a defence applied within narrow and prescribed limits and was not applicable in this case’.51 They ruled that Dalton’s testimony clearly established that the defendant knew what she was doing but had not been able to control herself, and said also that it was contrary to the purpose of the criminal law to acquit and discharge a defendant whilst she was still a threat to society. On that basis, the court was not willing to recognise PMS as a substantive defence.
49 Though it was her hormones that were said to turn her into a ‘raging animal each month and forced her to act out of character’, quoted in Celia Wells and Oliver Quick, Lacey, Wells and Quick, Reconstructing the Criminal Law: Text and Materials (4th edn, Cambridge University Press 2010) 775. 50 Smith (n 48). 51 Ibid 531. Griffiths LJ is reported as saying that this amounted to an invitation for the court ‘to make a leap in the dark’, Guardian, 28 April 1982, cited in Edwards (n 25) 89. 27
However, the court did mitigate Smith’s sentence and placed her on probation for another three years, which was again conditional upon her continuing to receive the higher-dose progesterone treatment from Dalton. As far as is known, Sandra Craddock/Sandie Smith was never again implicated in any criminal activity and this is where her story would seem to come to an end.52
Craddock/Smith was not the only premenstrual defendant to benefit from the medical evidence of Dr Dalton. In a peculiar turn of events, and by coincidence only one day after Smith’s second probationary sentence had been handed down, there followed a similar decision with regard to a premenstrual defendant named Christine English.53 According to the facts of her case, English had arranged a rendezvous with Barry Kitson, a married man with whom she had been having an affair. After driving to the pub where he had been drinking, she confronted him about his further infidelities. He retaliated by slapping and punching her, then abandoning her in the car, saying that he never wanted to see her again. English said that at this point she had lost all self-control, driven the car directly towards him and in the ensuing collision, pinned him up against a utility pole. Kitson died from his injuries two weeks later and Christine English was duly charged and tried for his murder.
At the hearing, medical evidence was introduced to show that English suffered from premenstrual syndrome. Although she had not previously been officially diagnosed, Dalton considered that there were several significant pre-existing factors that supported the presence of PMS, and it was feasible therefore that the effects of the premenstrual syndrome would have made her lose her self-control in the circumstances.54 Based on Dalton’s evidence, Judge Purchas was satisfied that English had committed the offence in ‘wholly exceptional circumstances’55 and accepted her plea of guilty to manslaughter by means of diminished responsibility. She was given a conditional discharge and banned
52 In an interview with People magazine, she said that she rarely left her house, so that the police could not treat her as a suspect whenever there was a crime in the area – Steffi Fields
from driving for a year. Controversially, this sentence was even more lenient than those which Sandra Craddock/Smith had received, for there was no additional requirement for English to undergo any medical treatment, submit to clinical observation, or even report to a probation officer. The coincidence of the trials of these two women, the success of their diminished responsibility pleas, and the seemingly benign punishments that both Craddock and English had each received,56 all came together in ‘a perfect storm’ and helped to give rise to ‘the premenstrual defence’ debate that was to ensue.
However, this chapter of events in the modern story of the premenstrual defence has yet to reach its conclusion. There was one other case of note to come before the English courts in the 1980’s, and this was yet another murder trial.57 Anne Reynolds was eighteen years old and suffering from postnatal depression, when in 1986, she killed her mother by hitting her repeatedly over the head with a hammer, then proceeded to arrange the scene to make it appear that a burglary had taken place. At her trial, Reynolds’ plea of diminished responsibility was rejected, despite expert evidence of clinical depression and a suggestion from the police surgeon, who had examined her immediately afterwards, that she was suffering from premenstrual tension at the time she had attacked her mother. The jury at first instance considered that the defence of diminished responsibility had not been made out on the facts and they returned a verdict of guilty to murder.
On appeal in 1988, Reynolds’ legal representatives applied to call Dr Dalton to put her own medical evidence before the court. The application was allowed, and Dalton appeared on behalf of Anne Reynolds. She said that the defendant suffered from both premenstrual syndrome as well as postnatal depression, following the birth of a baby which she had been pressured into giving up for adoption. In her medical opinion, both these factors had caused Reynolds to suffer substantial psychological impairment and to experience a temporary loss of control in the circumstances. Dalton’s evidence of premenstrual syndrome went unchallenged by the prosecution. In fact, relying upon both Dalton’s testimony and their own consultant psychiatrist’s report, prosecuting counsel in the appeal indicated that, were a re-trial to take place, then they would be willing to accept
56 In line with ideas about ‘the “benign conspiracy” between psychiatrist, defence prosecution and the court to bring [defendants] within diminished responsibility’, Law Commission, Partial Defences to Murder (Law Com No 290, 2004) para 2.34. 57 R v Reynolds [1988] Crim LR 679 (CA Crim Div). 29
a plea of guilty to manslaughter on the grounds of diminished responsibility.58 Debating this turn of events, the court indicated that it would be unsatisfactory to allow the verdict to remain and that a re-trial would be an expensive procedural matter which would only place an additional strain on the applicant. Accordingly, the appeal judges overturned the guilty verdict of the trial court, accepted Reynolds’ original plea and substituted a manslaughter verdict instead. She was sentenced to probation on the condition that she submit herself to psychiatric supervision and, from what is known of her case, Anne Reynolds was never again involved in any criminal activity.59
Such is the story of the premenstrual defence, as told by reference to those cases that took place in the English courts. A similar legal narrative about the premenstrual defence was at this time also attracting attention in the US legal arena – in the1982 case of People v Santos.60 After arousing the suspicions of emergency medical staff who believed that her four-year old daughter’s injuries were the result of child abuse, Shirley Santos had been charged with crimes of assault and endangering a child, both felonies under New York State law. Upon her arrest Santos maintained that she could not remember anything about her actions. She was said to have repeatedly claimed, ‘I don’t remember it . . . I would never hurt my baby. I just got my period’.61 During pre-trial hearings, her counsel attempted to employ the premenstrual syndrome as part of Santos’ defence strategy, contending that because she had been unaware of her actions at the time of the abuse, then she could not have formed the criminal intent necessary for the offence.62 Without the relevant mens rea, it was argued, then she could not be held responsible for her crimes. Hearing the pre-trial proceedings, Judge Becker stated in court that the defence was credible, reportedly saying also that, ‘Inasmuch as disruptions of the mind are admissible evidence in a criminal case, why should physical eruptions of the body likewise not be admitted’.63 Ultimately though this line of argument was never put to the test in Santos’ case, as she went on to abandon this plea in return for a reduction in her harassment
58 Reflecting a perceived wider trend for the defence of diminished responsibility to be accepted by the defence pre-trial, if satisfactory medical evidence is presented in support of the plea: Barry Mitchell, ‘Diminished responsibility manslaughter’ (1997) 8(1) Journal of Forensic Psychiatry 101, 105. 59 She later wrote an autobiographical account of her experiences – Anne Reynolds, Tightrope: A Matter of Life and Death (Sidgwick and Jackson 1991). 60 People v Santos No 1K046229 of 1981 (New York Kings County Criminal Court, plea entered 03/11/1982). 61 Cited in Chait (n 18) 269. 62 Similar to Sandie Smith’s arguments about a ‘special defence’ of PMS in Smith (n 48). 63 Marcia Chambers, ‘Menstrual Stresses as a Legal Defense’, New York Times, 29 May 1982, 46. 30
charge, to which she pleaded guilty. She did not receive a sentence or a fine for the conviction, on the stipulation that she attended a counselling programme. However, she did lose custody of her four-year old daughter as a result. Later, Santos’ lawyer claimed that the PMS defence had played a vital role in the plea-bargaining process.64
The stories of these four women – Sandie Craddock/Smith, Christine English, Anne Reynolds and Shirley Santos – are the ones that have received the most attention in the literature over the years, but they are not the only cases in which the premenstrual defence has been implicated. A survey of case law from around this time forward, illustrates that the premenstrual defence has featured in a range of other legal proceedings, both civil and criminal, and within both the domestic English courts and further afield.65 It is also possible that the courts have dealt with a great many more cases of premenstrual defendants that are not listed in the law reports – although this is a more speculative suggestion.66 Focusing directly on the examples set out below, these cases give an indication of how the premenstrual defence has been pleaded in past cases.
Take for example Nicola Owen, whose case pre-dates those set out above but whose criminal trial was in fact the first time that Dr Dalton appeared in court as an expert witness. Owen’s crime was one of arson. She had purposefully set fire to her parents’ house on two separate occasions – the second time whilst she was on remand for the first arson offence – causing in total twenty-five thousand pounds worth of damage. She was only eighteen years old when her second trial took place at the Old Bailey in 1978. A media report from the time details how Judge Gwyn Morris QC had accepted Dalton’s medical evidence that Owen’s ‘bizarre behaviour’ was caused by premenstrual syndrome,
64 Stephanie Benson, ‘Letter to the Editors’, New York Times, 15 November 1982, 18. 65 The majority of non-domestic PMS cases have taken place in the US: forgery – State v Lashwood 384 NW 2d 319 (SD 1986); revocation of license due to failure to take breath test – Commonwealth Dept of Transportation v Grass 595A 2d 789 (Pa Cmwlth 1991); and driving while intoxicated – Commonwealth v Richter No T90 215256 (Fairfax Co Gen Dist Ft 4 June 1991), the only case where the defendant succeeded with a defence of premenstrual syndrome. In Canada, premenstrual syndrome evidence has resulted in a conditional discharge for one defendant prosecuted for shoplifting, the dismissal of charges in relation to another shoplifter, and probation for a sufferer convicted of assault, cited in Judith DiGennaro, ‘Sex-Specific Characteristics as Defenses to Criminal Behavior’ (1982) 6 Criminal Justice Journal 187, 190. More recently, the defence has been used in India to acquit a woman of child murder:
sentencing her to a two year period of probation and issuing her with the parting comment, ‘Go out of this court quite free and with our best wishes for a Merry Christmas’.67 Although the case was not formally reported, some additional information about Nicola Owen’s story can be gleaned from her autobiography, entitled Nicola: The PMS Case that made History.68 In it, she is described as a normal, happy girl with a bright future as a dancer, whose behaviour changed significantly once she reached puberty. Like Sandra Craddock, as a teenager Owen had become unruly and aggressive, suffering from extreme mood swings, often acting irrationally and self-harming on multiple occasions. Once again, it was Dalton’s expert evidence that Owen was suffering from an acute case of premenstrual syndrome, which led to her plea in mitigation being accepted and her eventual release from remand.
Notably, although Owen was involved in what seems to have been the first premenstrual case of the twentieth century, her circumstances did not attract the same attention as the murder trials of Craddock, English and Reynolds. One can speculate that this might have been because her case had involved a lesser offence, whilst their stories included the additional ‘drama’ of a killing and a potential murder conviction. Arguably though, the story of Nicola Owen is precisely the type to warrant further scrutiny. For unlike the murder trials of the other premenstrual defendants who came later, she was unable to avail herself of the defence of diminished responsibility and could not point directly to any other obvious defences that would fit the facts of her case.69 All that Nicola Owen could rely upon was the testimony of Dr Dalton and the benevolence of the court at the sentencing stage of proceedings – and she is not the only premenstrual defendant to have found herself in this position. For defendants like Owen, who commit a crime other than murder, there is simply no suitable and effective defence under English criminal law. This goes directly to a key area of concern for the research in this thesis, and so the problem at issue here requires further scrutiny. Below I assess how this lack of a defence has caused a dilemma for some of the premenstrual defendants in several other cases.
67 ‘Illness made girl dancer start fires’ The Daily Telegraph, 21 December 1978, 3. 68 Nicola Owen and Sydney Higgins, Nicola: The PMS case that made legal history (Corgi 1993). 69 For example, there was no suggestion that either insanity or automatism would have been available in the circumstances. 32
In a 1985 shoplifting case R v Beer the defendant was charged with stealing a £4.10 joint of beef, despite having paid for all her other grocery items which totalled £19.50.70 The jury rejected her plea that she had been suffering from PMS at the time of the offence. In another case, that of R v Morris in 1988,71 the defendant Linda Morris had drunk a large quantity of alcohol, waited for her partner to return home and stabbed him whilst he slept, cutting a rib and penetrating his lung. Her actions had been motivated by being told by a third party about his advances towards a female neighbour. But the court also heard evidence that she was receiving treatment for premenstrual tension and was on tranquilisers for other health problems. Despite medical evidence of PMS presented in mitigation, she was sentenced to thirty months’ imprisonment.72
In a Scottish trial from around the same time, the premenstrual defence was again rejected, although this time for a very different rationale. The defendant in the case of Scott v Hamilton,73 had failed to provide a specimen of breath to the police, contrary to section 8 of the Road Traffic Act 1972. The penalty for the offence was an obligatory driving ban, unless there were special reasons for not disqualifying the driver. The defendant argued in evidence that at a certain time during her menstrual cycle, she ‘became aggressive, irritable, tense and clumsy and was unable to think clearly’. She had already received treatment from her GP and a consultant gynaecologist, and she stated that her symptoms had in the past been relieved by treatment with progesterone. However, her mitigating plea that PMS amounted to a ‘special reason’ for the court to reduce the penalty awarded to her was rejected,74 on the grounds that this could not constitute a special reason, as so many women were said to suffer from the disorder.75
Conversely, in another Scottish case that was also related to a driving offence, premenstrual syndrome was in fact deemed to be a relevant mitigating factor. In
70 R v Beer [1985] Lexis Citation 312, cited in Raitt and Zeedyk (n 20) 125. The basis for her defence is not made clear on the information provided about the case. 71 R v Morris (1987) 9 Cr App R 528. 72Other relevant cases include: R v Airey, unreported, CA 08/11/96; R v Knight (unreported) CA 16/01/98 – both appeals against sentence for unlawful wounding; R v Richardson [2001] EWCA Crim 612 – an appeal against sentence for attempting to pervert the course of justice. All had their appeals against sentence dismissed. Discussed in NZ Hilton, ‘Against Using PMS in Criminal Court Cases’ (1987) 7 March Justice of the Peace 152. 73 Scott v Hamilton 1988 SCCR 262. 74 Under the Road Traffic Offenders Act 1988, s 34. 75 Essentially, under Scots law, ‘special reasons’ are mitigating circumstances which do not amount to a substantive defence in law. 33
Thomas v Lowe,76 Carol Thomas had driven into the back of a stationary car which was waiting at a set of traffic lights. Although she had fled the scene, she was later traced from the information in a witness account. She plead guilty to careless driving and failing to stop after an accident but argued in mitigation that she was suffering from premenstrual syndrome at the time of the incident. This claim was supported by her doctor, who submitted a medical certificate to show that she suffered from very severe premenstrual syndrome. Thomas was fined £150, received penalty points on her licence, and was disqualified from driving for six months. She appealed against the driving ban, arguing that the court had placed insufficient weight on the medical evidence which had stated that her ‘symptoms take the form of anxiety, short temper, weakness, poor sleep’ and that, ‘while suffering from the premenstrual syndrome she acts like a completely different person, she can become almost aggressive and acts irrationally’. The appeal court found her premenstrual syndrome to be a significant mitigating factor, decided that the disqualification was not appropriate and instead substituted extra penalty points on her licence. Commenting on the case, the editor of the 1991 Scottish Criminal Case Reports said, ‘one is left wondering whether people should be allowed to drive at times when they are known to be likely to behave irrationally’.77 One is also left wondering, to what extent this comment relates to the fact that the case involved a woman driver – and therefore, how much it perhaps underscores wider concerns about the possibility of a premenstrual criminal defence engendering more negativity towards women as a social group.
Assessing these PMS cases in the round it is difficult to discern a consistent overarching judicial approach to the premenstrual defence. That said – and in the same vein as the earlier discussion of their nineteenth century counterparts – it is possible to identify some emerging themes. First, the twentieth century courts were once again willing to accept, in some instances at least, that the premenstrual syndrome was a valid consideration in establishing a premenstrual defendant’s criminal responsibility. Second, the defence of diminished responsibility was an important element in determining the liability of several of the premenstrual defendants, and the application of the defence in these cases was reliant on the relevant medical evidence – particularly that of Katharina Dalton. Third, that the cases of Craddock/Smith, English and Reynolds were in fact key to the clinical evolution of the premenstrual syndrome into what eventually became known as
76 Thomas v Lowe 1991 SCCR 943. 77 GH Gordon, Commentary to Thomas v Lowe 1991 SCCR 943, 945. 34
premenstrual dysphoric disorder or PMDD,78 a diagnosis which itself filtered back into later caselaw, as discussed in the section below. Finally, and most importantly, there was a fundamental gap in the law for those defendants who committed an offence other than murder and therefore did not have the diminished responsibility defence available to them – meaning that, in the absence of any other suitable defence, these women were left to rely on mitigation alone. Going back to the decision in Smith, the commentary of proceedings in that particular case succinctly encapsulated the issue, stating that ‘Unless [premenstrual syndrome] could be forced within the defence of diminished responsibility (where it does not sit very happily) there would seem to be no answer to the charge’.79 Clearly then, this gap in the law has proved problematic in the past. What then is there to be said about the legal position of the present-day premenstrual defendant?
iii. Premenstrual dysphoric disorder: a new label?
The analysis in this next section is brief – by virtue of the fact that the issue of premenstrual dysphoric disorder (PMDD) has yet to be raised as the basis for a substantive defence within the English courts. The only twenty-first century reference to a premenstrual defence is the case of R v Hughes, and the reported decision relates simply to an application for an extension of leave to appeal the original decision of the court.80 Hughes still requires some discussion though because it contains the first specific reference in the English courts to premenstrual dysphoric disorder or PMDD. The facts are set out below.
On Christmas Eve 2013, following a lengthy drinking session, Hughes had repeatedly stabbed her seventy-one-year-old partner, Barry Wilkins, who later died from complications whilst undergoing surgery for his injuries. There was evidence of a history of domestic abuse and both parties were heavy drinkers who regularly abused alcohol. Hughes admitted that she had been drinking that day but contended that she was not drunk at the time of the incident. At first instance, her defence was that she did not have the requisite intent for murder, pleading in the alternative either loss of control based on the defendant’s abusive actions towards her, or diminished responsibility due to the two
78 Discussed in detail in chapter two. 79 Smith (n 48) 532. 80 R v Hughes [2015] EWCA 2514. 35
separate mental disorders that she suffered from: mental and behavioural disorder due to alcohol (MBDA) and premenstrual dysphoric disorder (PMDD).
At the trial there was undisputed evidence that she suffered from both disorders. This was based solely on the expert evidence of the medical witness for the prosecution, as Hughes’ defence team did not themselves call a medical expert but were content to rely on concessions made by the prosecution’s witness in cross-examination. The psychiatrist for the prosecution stated that he ‘did not consider that the PMDD was then such as to substantially impair the applicant’s ability to understand the nature of the conduct or to form a rational judgement or to exercise self-control’.81 The court duly rejected the defendant’s plea to both diminished responsibility and loss of control. This was followed by the case in 2015, which was heard as a renewed application for leave to appeal her original conviction for murder. She raised four grounds of appeal: three relating to issues with the trial judge’s summing up and the fourth regarding admissibility of one part of her police interview evidence. None are in fact of any great significance within the context of this thesis, and all four grounds of appeal were refused.
Rather, the main point of note from the case of Hughes is that the court accepted the ‘undisputed evidence’ relating to the applicant’s premenstrual dysphoric disorder. However, whilst this might imply a tacit validation of the modern incarnation of a premenstrual disorder as a recognised medical condition for the purposes of the law, the premenstrual defence of PMDD has still to be fully tested as the clinical basis for a substantive legal defence. Potentially this raises a number of further issues. For example, a contemporary premenstrual defence case with facts similar to those of Craddock, English or Reynolds would now need to be assessed in light of the more stringent requirements of the revised defence of diminished responsibility under section 52 of the Coroners and Justice Act 2009.82 Moreover, despite the recognition in Hughes, a premenstrual defendant who committed any crime other than murder would still find herself without an appropriate defence. Finally, this legal recognition does not necessarily dispel the arguments of those who have previously opposed the use of the premenstrual defence. Previous discussion has already highlighted the criticisms raised by some
81 Hughes (n 80) para 10. 82 In particular, the requirement under s 52 1 (1B) Coroners and Justice Act 2009, that a defendant’s abnormality of mental functioning must ‘cause’ or be ‘a significant contributory factor’ to the killing. 36
feminists about the biologically essentialist implications of a premenstrual defence.83 Similarly, the more recent cases set out above have also proven to be contentious. In the section that follows then, I examine in more detail the legal, social and political discourse which has come to characterise the modern premenstrual defence debate.
3. ‘Premenstrual tensions’ in the criminal law: a critique of the literature
Having established a timeline of the relevant English criminal cases which have involved a ‘premenstrual defendant’, in this section I turn my attention to the commentary that these decisions inspired. Primarily, a targeted narrative literature review was used to establish the main sources for analysis that are set out in this section, with the search criteria being defined by reference to the key terms of my overarching research questions, for example, ‘premenstrual’, ‘criminal law’, ‘criminal responsibility’. And predominantly, the commentary discussed below – including also the historical content set out in preceding sections – was identified through means of relevant secondary sources. Overall, there are several general observations to be made about this body of work. First, broadly speaking the literature is divided into three main domains of discourse. These are: the scientific texts which debate the premenstrual disorders as medically recognised conditions;84 the media accounts of the premenstrual defence contained in the popular press;85 and the relevant scholarly literature on the premenstrual defendant – whether that be legal,86 sociological87 or political88 in terms of discipline. The review conducted here covers a cross-section of these various forms of content and this is reflected in the rubric that I employ below.
83 As referred to at p 24. 84 Discussed further in chapter two. 85 Joan C Chrisler ‘Hormone Hostages: The Cultural Legacy of PMS as a Legal Defense’ in Lynne H Collins, Michelle R Dunlap and Joan C Chrisler (eds), Charting a New Course for Feminist Psychology (Praeger 2002). 86 Patricia Easteal, ‘Women and Crime: Premenstrual Issues’ (1991) Trends and Issues in Crime and Crim Just 1. 87 C Amanda Rittenhouse, ‘The Emergence of Premenstrual Syndrome as a Social Problem’ (1991) 38 Social Problems 412. 88 Kathy Kendall, ‘The Politics of Premenstrual Syndrome: Implications for Feminist Justice’ (1991) 2 The Journal of Human Justice 77. 37
In addition, and as with the historical timeline of case law mapped out above, the existing literature about the premenstrual defendant can also be divided into time-contingent genres. Whilst the issue had been debated to some extent prior to the decisions in the late twentieth century cases,89 the majority of commentary was written in the two decades following the decisions in Craddock/Smith, English and Reynolds. Therefore, much of the discussion below dates from the late twentieth century and so must be viewed within this historical and temporal context. By this I mean, for example, that the literature primarily refers to the premenstrual syndrome, rather than the newer terminology of premenstrual dysphoric disorder.90 It also pre-dates recent reforms to the defence of diminished responsibility, as set out in section 52 of the Coroners and Justice Act 2009. In addition, the tone of the commentary tends to reflect socio-political concerns from that time.91 The analysis that I conduct below is therefore something of a retrospective and needs to be contextualised as such.
One final general observation is worthy of note. In reviewing the commentary, there were only a small number of citations referring to the premenstrual defendant in the work of those authors considered to be more mainstream criminal law theorists. For example, Horder,92 Sullivan93 and Lacey94 all refer to the sufferer of PMT or PMS in the context of their various studies of criminal responsibility. But these are brief references only and do not constitute a significant substantive consideration of the premenstrual defendant’s criminal liability. That said, it is worth holding the work of these authors in mind for discussion in later chapters, for each potentially has something important to add to the
89 Irwin N Perr, ‘Premenstrual Tension, Medicine and Law’ (1958) 7 Cleveland-Marshall Law Review 211; Aleta Wallach and Larry Rubin, ‘The Premenstrual Syndrome and Criminal Responsibility’ (1971) 19 UCLA Law Review 209; Julie Horney, ‘Menstrual Cycles and Criminal Responsibility’ (1978) 2 Law and Human Behavior 25. 90 As set out in the DSM-5, American Psychiatric Association (n 43). 91 Sophie Laws, Valerie Hey and Andrea Boroff Eagan, Seeing Red: The Politics of Pre-Menstrual Tension (Harper Collins 1985). 92 Horder proposes that a sufferer of PMT may not be ‘morally responsible for their actions . . . because they are estranged from their moral characters when they act’ (emphasis original), Jeremy Horder, ‘Pleading Involuntary Lack of Capacity’ (1993) 52 Cambridge Law Journal 298, 317. 93 Sullivan states that ‘severe pre-menstrual tension . . . can produce states of being which induce outbursts of violence in persons otherwise well disposed’, GR Sullivan, ‘Making Excuses’ in AP Simester and ATH Smith (eds), Harm and Culpability (OUP 1996) 147. 94 Lacey considers PMT in line with other conditions such as battered women’s syndrome and post- traumatic stress disorder, suggesting that a ‘concession to normal human frailty should be made by the criminal law’, Nicola Lacey, ‘Partial Defences to Homicide: Questions of Power and Principle in Imperfect and Less Imperfect Worlds . . .’ in Andrew Ashworth and Barry Mitchell, Rethinking English Homicide Law (OUP 2000). 38
story of the premenstrual defendant. Here though I turn my attention first to the principal questions that have exercised those theorists who have already written about her legal dilemma.
i. The medical question
The main issue to arise at the time of the decisions in Craddock/Smith, English and Reynolds was: does the premenstrual syndrome exist? As Susan Edwards phrased the issue, ‘is PMT fact or fiction . . . and what is the nature of the evidence which supports the PMT crime theory?’95 I seek to resolve one aspect of this query in the next chapter of this thesis, in my discussion of the recent scientific developments that have led to the classification of the premenstrual disorder as a recognised medical condition. Here though I briefly chronicle the frame of reference for this question as it was then asked (in 1984), to highlight the nature of the discussion that took place at that time, and the concerns which were raised in some quarters about the reification, problematisation and medicalisation of the premenstrual syndrome.
Debate about the reality of the premenstrual syndrome had been prompted at that time by the relevant case law, as well as the medical testimony and the corollary clinical work of Dr Katharina Dalton.96 Her involvement in this legal debate was seen as both blessing and curse, depending on one’s perspective. Many commentators were scathing about Dalton’s research and criticised her medical input on several grounds.97 For example, her studies were said to be methodologically unsound because she based her diagnoses primarily on the anecdotal reporting of sufferers. The invective directed towards Dalton was similar in tone to the contemporary critique of other research literature on PMS, which was also said to lack scientific rigour.98 Relevant studies were disparaged because they were retrospective, based on imprecise symptom-based questionnaires, or had been conducted without control groups and with no specific baseline for comparison.99 Earlier studies were cited uncritically, and original sources were not checked before being
95 Edwards (n 25) 85. 96 As discussed in chapter two. 97 Laws, Hey and Eagan (n 91) 57. 98 See further Anne Walker, ‘Theory and Methodology in Premenstrual Syndrome Research’ (1995) 41 Social Science & Medicine 793. 99 Mary B Parlee, ‘The Premenstrual Syndrome.’ (1973) 80 Psychological Bulletin 454, 455. 39
referred to in the modern research.100 One of the main criticisms though was that the majority of research on the link between PMS and criminal behaviour was purely correlational, but it had still been interpreted as implying that the phases of the menstrual cycle caused particular acts.101
An additional difficulty was the way in which Dalton often conflated her medical opinion on the premenstrual disorders with her own personal outlook. For example, at the time of the Smith and English cases, she was quoted as saying:
I think women have a duty if they know they are going to break something and going to be irritable to be treated and to look after themselves. They owe it to themselves and to women in general. Otherwise they will get what they deserve from men.102
Whichever way one reads this comment – whether as a product of Dalton’s age and generational politics, or a reflection of her own controversial views – clearly it had the potential to detract from much of her medical legacy and opened her up to further criticism from feminist commentators who disagreed with her diagnosis. However, Dalton herself was aware of the objections to her work. Partly as a response to her critics and partly to further publicise the problems of premenstrual sufferers, in 1990 she published a text entitled Premenstrual Syndrome goes to Court.103 Recognising the criticisms that had already been levelled at her medical diagnosis, she wrote in her book that, ‘Premenstrual syndrome has been called a non-disease, an imaginary disease and a disease of social expectation’.104 She included also a riposte to her critics that, ‘The information contained in this book is firmly based on the clinical experience of the author and not on armchair theorising’.105
This text was a summation of Dalton’s clinical knowledge gained during forty years of her research into the diagnosis and treatment of premenstrual patients, and an account of her experiences as an expert witness appearing in court on behalf of a number of premenstrual defendants. In it she provides ‘a clear and precise definition’ of the
100 Raitt and Zeedyk (n 20) 129. 101 Harry and Balcer (n 35). 102 Quoted in Sophie Laws, ‘Who needs PMT? A feminist approach to the politics of premenstrual tension, in Laws, Hey and Eagan (n 91). 103 Dalton (n 33). 104 Ibid 4. 105 Ibid 148. 40
premenstrual syndrome as, ‘the recurrence of symptoms in the premenstruum with complete absence of symptoms in the postmenstruum’.106 She explains that a diagnosis of PMS for a woman who pleads the premenstrual syndrome in court requires evidence of the fulfilment of three criteria.107 The relevant symptoms must be recurrent and have been present in at least the last three of her menstrual cycles; the criminal incident must have occurred in the premenstruum,108 and there must be complete ‘normality’ and ‘freedom from symptoms’ during the postmenstruum.109 She states also that offences committed by women whilst they are suffering from the premenstrual syndrome have three inter-related characteristics: they display spontaneity, are irrational, or are associated with violence.110 Dalton asserts that all of these characteristics imply ‘a temporary absence of essential thought processes required to formulate the necessary intent, which would mean, in legal terms, that there was no “mens rea” or guilty intent’.111
However, as she points out, these characteristics are in fact those of the premenstrual syndrome itself, whereas the crime that a premenstrual defendant commits is the resultant effect of these characteristics on the individual’s behaviour at that particular time in her menstrual cycle. Hence, she postulates that ‘premenstrual syndrome crimes’ also have distinctive qualities, which can be listed as follows. They generally occur as part of a pattern of recurrent offences; the offence is often committed alone, without the involvement of any other parties; it is not premeditated; there is no apparent motive; no attempt to escape detection; and the offence is often committed when there has been a long interval without food.112 In terms of the nature of the particular mental dysfunctions of the women involved, Dalton describes depression, irritability and even psychosis, as the three most prevalent symptoms in women with patterns of criminal behaviour:
106 Dalton (n 33) 35. 107 Ibid 44. 108 Occurring ‘before menstruation, usually within a day or two of the onset of menstruation, but at the very longest it cannot occur more than 14 days after menstruation’, Dalton (n 33) 44. 109 Beginning with the onset of bleeding and lasting for several days thereafter. 110 Dalton (n 33) 8. 111 Ibid. Though Dalton does not provide any further analysis – medical or legal – on this point. 112 Ibid 8. The last criterion refers to Dalton’s theory of a link between the premenstrual syndrome, low blood sugar and the hormonal effect of a sharp resulting rise in adrenalin. 41
In the depths of premenstrual depression . . . some sufferers indulge in irresponsible spending or the shoplifting of jewellery, dresses or perfume, with no thought for the future . . . Still others smash windows and doors, attempt arson, or make prank phone calls. As a result of these activities, the victim of severe depression inadvertently may become involved in criminal proceedings.113
Dalton’s work also contains numerous individual case studies of premenstrual sufferers who are said to have committed a diverse array of crimes: murder, violent assault, criminal damage, shoplifting and others. Some of these anecdotal accounts are anonymised, some refer only to the initials of the sufferers, and some to actual names, whether real or pseudonyms. She says too that, ‘The examples presented . . . are a small selection from the records of the many patients who have been helped back to a normal life’.114 Admittedly, because of their anecdotal quality, it is difficult to establish their validity or determine their empirical value. However, within the context of the approach that I employ in this thesis, I would suggest that these case study stories are holistically instructive for my analysis, because they help to tell the story of the premenstrual sufferer, and contribute to the analysis of the premenstrual defendant’s criminal responsibility.
In addition, as Carlen and Worrall observed, the criticisms regarding the political implications of accepting Dalton’s theory intruded significantly upon the medical debate and ‘clouded the recognition of what could be seen as an otherwise valuable clinical exploration of a neglected area of medicine’.115 Thus, acknowledgement and acceptance of the medical evidence is a vital part of the operation of the premenstrual defence, and it is of no credit to her critics that Dalton’s work was so categorically dismissed. More recently, there have been moves towards a greater recognition that, ‘biological factors have a direct bearing on the way women experience stressful events in their lives’.116 Arguably, the premenstrual disorders can significantly affect the quality of some women’s lives and ‘sweeping this lived reality back under the carpet from which it has only recently been retrieved, there to be swamped in the layers of shame, myth and taboo historically
113 Katharina Dalton, ‘Premenstrual Syndrome’ (1986) 9 Hamline Law Review 143, 147. 114 Dalton (n 33) 87. 115 Pat Carlen and Anne Worrall (eds), Gender, Crime and Justice (Open University 1987). 116 Baroness Jean Corston, The Corston report: a report by Baroness Jean Corston of a review of women with particular vulnerabilities in the criminal justice system, The need for a distinct, radically different, visibly-led, strategic, proportionate, holistic, woman-centred, integrated approach (Home Office 2007) para 2.5. 42
associated with it’,117 does not do justice to any woman. Hence the fact that some sufferers want their premenstrual symptoms to be defined as a medical disorder should be borne in mind. Inevitably of course, this issue is of particular concern to those sufferers who want their premenstrual disorder to be recognised as a relevant factor in the commission of their crime, as discussed in the section set out below.
ii. The legal question
For a woman to successfully plead a ‘premenstrual defence’, or that her premenstrual disorder was an excusatory mitigating factor in her crime, then she must fulfil the relevant legal criteria. This is the legal question. Previous commentators have explored the ways in which a premenstrual defendant might plead her case and have identified several possible approaches. Either her premenstrual disorder could be considered within the framework of an existing defence such as insanity, automatism, or diminished responsibility. Or alternatively, a defendant might plead a lack of mens rea for the crime in question, as Dalton has asserted – although, potentially this is a much more difficult matter to prove than Dalton may have assumed.118 Instead then, the issue could be raised at the sentencing stage of proceedings as a mitigating factor. Finally, and perhaps rather optimistically, a premenstrual defendant could argue for the recognition of an autonomous ‘premenstrual defence’, as in R v Smith.119 The discussion below assesses some of these propositions in more detail.
First, within the existing legal commentary, there has been an acknowledgement that the partial defence of diminished responsibility120 is the least problematic defence currently available to a sufferer of the premenstrual syndrome.121 This may be because, ‘unlike insanity, it does not carry the risk of indefinite confinement and also, unlike PMS as a
117 Linda Luckhaus, ‘A plea for PMT in the criminal law’ in Susan Edwards (ed), Gender, Sex and the Law (Croom Helm 1985) 178. 118 As Morse asserts,‘The claim that culpability was reduced because mental abnormality negated mens rea will seldom succeed’, in Stephen J Morse, ‘Diminished Rationality, Diminished Responsibility’ (2003) 1 Ohio State Journal of Criminal Law 289, 294. 119 As discussed at pp 26-27. 120 Previous discussion centred on the Homicide Act 1957, s 2, as amended by the Coroners and Justice Act 2009, s 52. 121 Lee Solomon, ‘Premenstrual Syndrome: The Debate Surrounding Criminal Defense’ (1995) 54 Maryland Law Review 571, 591; also, Karen M McArthur, ‘Through Her Looking Glass: PMS on Trial’ (1989) 47 University of Toronto Faculty of Law Review 825, 852-53. 43
mitigating sentencing factor, it is not merely a discretionary judicial matter’.122 In addition, since the defence of diminished responsibility does not lead to a complete acquittal, but instead a conviction for manslaughter, then this allows the courts to retain some control over a premenstrual defendant. In the light of concerns expressed in the dicta in Smith,123 arguably this might make it a more appealing option for the courts because it can be employed, in the relevant instances, to fulfil the fundamental requirement of the criminal law to protect society. Essentially, the underlying philosophical purpose of the diminished responsibility plea is to enable a claim that the defendant did not have the full mens rea. As McArthur notes, ‘it recognises that if one is not fully possessed of accountability as a result of an abnormality, then one is not morally blameworthy’.124 Arguably therefore, the diminished responsibility plea is also the defence that most accurately reflects the individual circumstances of a premenstrual defendant, and the manner of legal excuse that she might seek to plead.125 There is of course one vital qualification to the defence of diminished responsibility: it is only available for the offence of murder. Thus, whilst the premise of the defence might make it eminently appropriate for a premenstrual defendant,126 it would not be suitable or available for all offenders.
The other proviso to the diminished responsibility plea is that it serves only as a partial defence. A successful defendant is still found liable for the crime of manslaughter. She will be subject to a stigmatising criminal record, and liable to the punishment deemed appropriate by the court. The perceived disadvantages inherent in such a plea has prompted some commentators to speculate about the full substantive defences that might be available as an alternative – specifically, automatism or insanity. With regard first to automatism, this has in fact already been pleaded as a defence in the case of Smith.127 And although it was decided that automatism did not apply on the particular facts presented, theoretically there would be nothing to prevent a finding of automatism in a future case.
122 Judith A Osborne, ‘Perspectives on Premenstrual Syndrome: Women, Law and Medicine’ (1989) 8 Canadian Journal of Family Law 171, 172. 123 As discussed at pp 26-28. 124 McArthur (n 121) 852. 125 Taking into account the moral imperative inherent in the criminal law principles of proportionality and fair labelling, for example, James Chalmers and Fiona Leverick, ‘Fair Labelling in Criminal Law’ (2008) 71 Modern Law Review 217. 126 Commentators disagree on this point. McSherry asserts that PMS would not fulfil the criteria, McSherry (n 10). Luckhaus applies her own interpretation and argues that it would, Luckhaus (n 117). 127 Smith (n 48). 44
Automatism grants an acquittal to an individual who commits a criminal act as a result of their involuntary actions,128 which are deemed to negate either a defendant’s intent or actus reus, or sometimes both. Automatism has been categorised as both the product of a disease of the mind, which can result in a finding of insanity as set out below, or alternatively as the product of another physical or physiological condition, thereby providing a defence based on the absence of intentional action. Some theorists have in the past offered their support for the possibility of automatism as a full defence leading to the acquittal of the premenstrual defendant.129 Others though have questioned whether the symptoms of the premenstrual syndrome are such that a defendant’s actions could be seen to meet the requirement of involuntary conduct, necessary for a successful plea of automatism.130
The alternative then, it has been suggested, might be for a premenstrual defendant to plead insanity. The defence of insanity constitutes an acknowledgement that the legally insane individual lacks a crucial element of criminal responsibility – essentially, moral culpability. This archaic defence is grounded in the M’Naghten rules and, to be pleaded successfully the court must hear evidence of the defendant’s ‘disease of the mind’ and her inability to comprehend the consequences of her actions. Again, opinion is split as to the applicability of the insanity defence to the premenstrual defendant’s circumstances. Some have argued that ‘the behavioural manifestations of premenstrual syndrome are similar to those of legal insanity’.131 Yet others have suggested that ‘certain symptoms commonly associated with the premenstrual syndrome are to be properly characterized [sic] as mental defects or diseases so as to enable a female defendant to plead an insanity case’.132 Several opponents have argued that the symptoms of the premenstrual syndrome are not such as to prevent a woman from appreciating the ‘nature and quality’ of her actions, or that they were ‘wrong’, as per the requirements of the M’naghten rules.133 A further consideration is that a successful plea of insanity can still result in compulsory
128 Hill v Baxter [1958] 1 QB 277. 129 Carney and Williams (n 54) 265; also, Apodaca and Fink (n 11) 75. 130 Commentators disagree: McSherry argues that the actions of the premenstrual defendant are not involuntary, even if she has difficulty controlling herself, McSherry (n 10) 312. Wallach and Rubin argue that ‘counsel for female defendants should vigorously pursue this defense’ [sic], Wallach and Rubin (n 89) 278. 131 Carney and Williams (n 54) 263. 132 Wallach and Rubin (n 89) 286-87. 133 Richard T Oakes, ‘PMS: A Plea Bargain in Brooklyn Does Not a Rule of Law Make’ (1986) 9 Hamline Law Review 203, 210-11; also, Holtzman (n 10) 1. 45
detention and institutionalisation of a defendant for treatment purposes. An even more important factor perhaps, is the ensuing stigma that might result for a premenstrual defendant from a successful insanity plea. Conceivably, this might explain why insanity has yet to be employed as a potential premenstrual defence.
Much of the late twentieth century discourse on the potential defences for a premenstrual defendant tended to focus on the defences set out above. It is clear from this literature that there was a consensus amongst many commentators that each of these legal excuses brought with it its own problems. This led many theorists to turn away from the substantive defences, and to focus instead on mitigation.134 There are several reasons why this was perceived to be the most suitable option for the premenstrual defendant. First, the ongoing dispute about the premenstrual syndrome as a medical condition meant that many considered it to be more acceptable for PMS to be raised during sentencing rather than as part of the main responsibility-attribution stage of criminal proceedings.135 Also, given that the court can take into account a greater range of factors as part of a defendant’s plea in mitigation, then this makes it easier for the premenstrual defendant to argue her case, because she does not have to position herself within the parameters of the more stringent formal requirements of the available defences. In addition, this option was viewed as being the least controversial in terms of a policy perspective. On an individual level, the premenstrual defendant would still be held responsible for her crime which, within the wider context, might also be viewed as less damaging towards women as a social group. However, the inherent difficulty with this option is the fact that the premenstrual defendant is still held fully responsible for her criminal actions. This then, is tantamount to the courts acknowledging that a defendant may be morally blameless, yet she can still be labelled a criminal. Not only does this ‘compromise’ have serious implications for the premenstrual defendant herself, but it also undermines the legitimacy of the criminal justice system overall.
One final option, as proposed in both Smith and Santos,136 is for the premenstrual syndrome to be accepted by the courts as the basis of an entirely new and autonomous
134 Including Oakes (n 133) 214; McArthur (n 121) 856; McSherry (n 10) 316. 135 Nicole R Grose, ‘Premenstrual Dysphoric Disorder as a Mitigating Factor in Sentencing: Following the Lead of English Criminal Courts’ (1998) 33 Valparaiso University Law Review 201, 220. 136 And rejected in both cases. 46
defence. Despite the opposition that was expressed in these cases to such a proposal, it has received some support elsewhere. Judith Osborne proposed that it could form a ‘new legal category’ saying that, ‘The solution, perhaps, is not to work within the confines of the existing criminal justice system’ but ‘to be creative’.137 Given then that the legal question of the premenstrual defendant’s criminal responsibility has yet to be adequately answered, it might be wise to bear in mind Osborne’s entreaty to ‘be creative’ with the current legal framework. Indeed, in a similar vein McArthur suggests that, ‘If traditional legal doctrine cannot accommodate [a woman’s] symptoms, and yet, it appears that within her symptoms she lacked the necessary intent, then it would be just to adapt traditional legal doctrine to reflect this fact’.138 No commentator has addressed exactly how this could be achieved though, so it is not clear what such a ‘solution’ or set of ‘adaptations’ to the law might look like. That is something that I aim to explore further in this thesis – how to formulate a defence for the premenstrual defendant within the parameters of existing legal doctrine. The inherent difficulties in tackling this complex problem should not be underestimated though. For in addition to the questions above that relate to the medical and legal position of the premenstrual defendant, there is one further complicating factor that has an impact on both these questions. That is the issue of the premenstrual defendant’s gender and her status as a woman.
iii. The gender issue
Writing in 1984, Susan Edwards said, ‘Feminists the world over are objecting strenuously to the use of PMT as a mitigatory or contributory factor’.139 Reviewing the analysis from this period, it is apparent that the most strenuous ideological objections to the premenstrual defence were often raised by other women. Broadly speaking, these criticisms can be grouped according to the following concerns: the perceived paternalistic nosology of the premenstrual disorders; a failure to account for the social context of sufferers’ lives and alternative theories as to the causes of their symptoms; the view that the premenstrual defence was damaging to women as a social group; and the dichotomous labelling of women as ‘mad or bad’, with the further perpetuation of these damaging
137 Osborne (n 122) 179. 138 McArthur (n 121) 861. 139 Edwards (n 25) 90. 47
stereotypes that recognition of the premenstrual defence entailed. Here I briefly explore each of these issues.
Historically, the majority of medico-legal discourse has been male-normative. Even today it can be argued that both medicine and the law exist as part of a system that still regards the male body as the norm and the female as pathological.140 Critics have highlighted how this patriarchal heritage operates at a number of levels in relation to the premenstrual disorders. First, as they point out, there is no equivalent to the premenstrual disorders in men, so as a gendered group they are not additionally labelled or burdened by this type of disabling construct. Also, the medical discourse regarding the premenstrual syndrome seems to pick up quite neatly from where previous hegemonic theories about women’s susceptibility to ‘diseases’ like hysteria had left off, thereby perpetuating notions of women’s physical inferiority and mental weaknesses, but under a different medical classification.141 Hence the view amongst some feminists that the medicalisation and legitimation of PMS over the decades, has been in direct response to the needs of society to control women’s behaviour and suppress their active participation in society.142 The conceptualisation of the premenstrual disorders is often seen as a contemporary vehicle for policing women and an expression of ‘expectations about how women should behave . . . and how women might be controlled’.143 Implicitly, the premenstrual defence then is just another means of keeping women in their place.
The second criticism raised by feminists relates to the reductionist nature of the premenstrual disorders. Theorists have argued that blaming a woman’s behaviour on her hormones is too simplistic. Not only does this deterministic notion fail to account for the alternative reasons for her premenstrual symptoms,144 but it also disregards the social context in which a female defendant acts, and in turn this reinforces the idea that her
140 Other examples in the criminal law include infanticide, battered women’s syndrome and previous conceptualisations of the provocation defence. Discussed further in Donald Nicolson, ‘What the Law Giveth, It Also Taketh Away: Female Specific Defences to Criminal Liability’ in Donald Nicolson and Lois Bibbings (eds), Feminist Perspectives on Criminal Law (Cavendish Publishing 2000). 141 Denise Russell, Women Madness and Medicine (Polity Press 1995) 62. 142 McArthur (n 121) 845. 143 (emphasis original) Raitt and Zeedyk (n 20) 126. 144 Or that some women do, in fact, take a positive view of the personal experiences related to their menstrual cycle. 48
behaviour is a consequence of her innate irrationality.145 These arguments combine feminist beliefs about patriarchy and gender-power relations, with the concept of illness as a social, rather than a biological, construct. Sophie Laws states that, ‘The male medical model cannot conceive of continuous change [of the female body], and PMT forces female experience into a category it can handle – sickness’.146 Thus the normal fluctuations of female hormones will always be regarded as abnormal in the male medical view. Furthermore, on this medicalised model, no attention is paid to a sufferer’s socio- economic or personal circumstances which, as some feminists have argued, could equally account for her premenstrual symptoms, as the expression of her anger at her constrained circumstances.147 According to many feminists therefore, the use of the premenstrual defence may only draw a veil over a woman’s real reason for committing the crime.
An additional concern, and a recurring theme within the feminist literature, is that the recognition of PMS as a sex-specific condition by the criminal courts, reduced the debate to a contest between the interests of an individual defendant and the interests of all women in society.148 The ‘label’ of PMS and the ‘double-edged sword’ of the premenstrual defence was seen as reinforcing male perceptions of women’s inherent irrationality. Therefore, ‘the benefits possibly available to a small class of women who would be able to raise a successful PMS defence . . . must be weighed against the potential setback to the women’s movement’.149 Raitt and Zeedyk offer the most sophisticated analysis on this point, in their examination of the ‘professional shouting match’ that arose among a number of the earlier feminist authors.150 On the one side, for example, were commentators like D’Emilio and Osborne arguing for individual rights, and that ‘PMS sufferers should be entitled to enter evidence . . . regardless of the serious policy concerns asserted by certain women’s rights groups’.151 On the other side stood critics such as Allen and Chait, with Hilary Allen remaining unequivocal in her view that there should be no
145 For a general discussion on this point, see Jane M Ussher, The Psychology of the Female Body (Routledge 1989). 146 Sophie Laws, ‘The Sexual Politics of Pre-Menstrual Tension’ (1983) 6 Women’s Studies International Forum 19, 30. 147 Similar arguments have been raised with regard to infanticide: Katherine O’Donovan, ‘The medicalisation of infanticide’ (1984) Criminal Law Review 259. 148 Nora Mulligan, ‘Premenstrual Syndrome’ (1983) 6 Harvard Women’s LJ 219. 149 Ibid 227. 150 Raitt and Zeedyk (n 20) 120. 151 Joann D’Emilio, ‘Battered Woman’s Syndrome and Premenstrual Syndrome: A Comparison of their Possible Use as Defenses to Criminal Liability’ (1984) 59 St John’s L Rev 558, 587. Also, Osborne (n 122) 171. 49
premenstrual defence and no special judicial treatment for sufferers, even if this ‘implies the (politically uncomfortable) advocacy of severer treatment for women than that which they might currently receive’.152 The fundamental problem with this feminist argument however, is that it assumes that this is a valid dichotomy in the first place. Ultimately, political considerations of this sort should have no normative sway in the determination of an individual’s criminal responsibility. But, as the analysis shows, in the context of the feminist debate set out above, it was still deemed to be a valid proposition for genuine sufferers to lose out on a potential defence, solely because of the perceived risk of damage to the entire female gender.
The final point in this section relates to the notion that women who commit offences, or who do not conform to society’s idea of how they should behave, are generally deemed to be either ‘mad’ or ‘bad’. As McArthur phrases it, ‘stepping out of one’s gender role may be tantamount to asking for involvement with the criminal law’.153A number of authors have written extensively about this labelling of women as mad or bad, and the stereotypes and stories that are told about female defendants who are involved in the criminal justice system.154 Given the particularised circumstances of the premenstrual defendant, this is a highly relevant issue for her. Not only does she face social stigma due to the nature of her menstrual related mental health disorder, but once she becomes a participant in the criminal justice system, she encounters further potential stigmatisation. As Raitt and Zeedyk rightly point out, whatever potential defence a premenstrual defendant tries to plead – whether that be diminished responsibility, insanity, automatism or mitigation – ‘the outcome . . . is that women are placed in a double bind: they can either be guilty or they can be crazy’.155 Essentially therefore, even an outwardly successful premenstrual defence plea can result in further consequences for the premenstrual defendant. That said, this should not be used as a reason to dismiss the premenstrual defence entirely. Rather, this feminist concern about labelling and stigmatisation should be regarded as something of a jumping-off point for further debate, and potentially also an alternative angle from which to assess the legal question that pertains to the premenstrual defendant. In fact, the way in which women’s characters are construed and
152 Allen (n 17) 223. Also, Chait (n 18). 153 McArthur (n 121) 843. 154 Donald Nicolson, ’Criminal Law and Feminism’; Celia Wells, ‘Groups, Girls and Fears’ in Nicolson and Bibbings (n 140). 155 Raitt and Zeedyk (n 20) 125. 50
constructed within the criminal law stands as a central feature of this thesis. As such, it is important to make clear the methods that I intend to employ in order to explore further this complex and controversial issue, and that is the precise focus of the section which follows.
4. Telling stories about the premenstrual defendant: rewriting the narrative
As I have said from the start, my aim in this thesis is to ‘tell the story’ of the premenstrual defendant. Thus far I have introduced her as the central protagonist, established some of the main characters, and provided the contextualised historical backdrop to her legal narrative. My next move is to explain in more detail why I have chosen to focus my efforts on ‘telling the story’ of the premenstrual defendant and what this in fact entails. In the section that follows I shall devote some time and attention to elaborating on how this narrative approach will help to drive forward my analysis of the primary research question that underpins this thesis.
Ostensibly, the ‘law has always been concerned with narratives, with the individual plaintiff and the individual defendant in the individual case’.156 As examples we can point to the first-person narration of witnesses in court; the selection of the evidence that shapes the narratives told at trial; the opening and closing oral arguments of the in-court advocates; the rhetoric of the judicial summing-up for the jury; and, in some respects, the judgement that is ultimately handed down to the defendant.157 In recent decades, legal scholarship has also seen a ‘rush to storytelling’,158 alongside an increasing recognition that legal narrative, in its various forms, is almost ubiquitous in both the operation and study of the law.159 This contemporary appreciation of the relevance of subjective legal storytelling is in part a reaction against the traditional assumption that the concepts of abstraction and objectivity stand at the apex of the law. It is reflective also of the scholarly
156 Kim Lane Scheppele, ‘Foreword: Telling Stories’ (1989) 87 Michigan Law Review 2073, 2073. 157 Andrew Benjamin Bricker, ‘Is Narrative Essential to the Law? Precedent, Case Law and Judicial Emplotment’ (2016) 15 Law, Culture and the Humanities 31. 158 Scheppele (n 156) 2073. 159 For a wider survey of the narratological scope of legal discourse, see Greta Olson, ‘Narration and Narrative in Legal Discourse’ in P Hühn, JC Meister, J Pier, W Schmid and J Schӧnert (eds), The Living Handbook of Narratology (Hamburg University Press 2009)
trend in other disciplines that have themselves sought to question the theoretical validity, and indeed achievability, of true impartiality within their own fields of study.160 This interest in storytelling in the law itself – in particular the potential challenge that some narratives present to more mainstream or conventional legal scholarship161 – has emerged from a variety of theoretical standpoints, including critical legal studies, legal pragmatism and, most notably for this thesis, feminist jurisprudence.162
One of the perceived principal benefits of a legal storytelling, or legal narrative, approach is that it presents the lived experiences of marginalised groups or individuals in a way that traditional legal reasoning often fails to accomplish. Hence, this is my rationale for the legal storytelling stance that I adopt in this thesis. More particularly, I have chosen to take as my starting point the jurisprudential movement described as feminist legal narrative scholarship.163 Acknowledging that feminist scholars tend to be constantly engaged in narratives of one form or another,164 I would argue that this distinctive form of critical legal discourse is a highly appropriate analytical method for my assessment of the premenstrual defendant’s position within the criminal law. Telling the story of the premenstrual defendant within the discursive framework of a feminist legal narrative enables me, not only to critically analyse the premenstrual defendant’s marginalised and disadvantaged status within the criminal law, but also to mount a challenge to the established – and arguably exclusionary – mainstream discourse and substantive practices of the criminal law.
What do I mean then when I say that my aim in this thesis is to ‘tell the story’ of the premenstrual defendant? And why is a feminist legal narrative approach of value in telling her tale? First, it is clear from my review of the relevant literature in the preceding section
160 For example, Thomas S Kuhn, The Structure of Scientific Revolutions (3rd edn, University of Chicago Press 1996) – challenging the objectivity of science. Also, Richard Rorty, Philosophy and the Mirror of Nature (Princeton University Press 1979) – criticising philosophy’s attempts to discover new objective truths. 161 Kathryn Abrams, ‘Hearing the Call of Stories’ (1991) 79 California Law Review 971, 975 – comparing feminist narrative scholarship to ‘mainstream’ or ‘standard’ legal scholarship. 162 Jane B Baron, ‘The Many Promises of Storytelling in Law: An Essay Review of Narrative and the Legal Discourse: A Reader in Storytelling and the Law’ (1991) 23 Rutgers Law Journal 79. 163 Abrams (n 161). Abrams suggests that most feminist narrative scholars start from two shared premises: ‘a preference for particularity of description’ and ‘a belief that describing events . . . from the perspective of the person going through them – conveys a unique vividness of detail that can be instructive to decisionmakers’, ibid 982. 164 Ibid 1017. 52
of this chapter that the premenstrual defendant’s story can be situated within the wider framework of established feminist discursive practices, which themselves often tend to take the form of an alternative, non-orthodox, legal narrative. Moving beyond that however, I would argue that the premenstrual defendant has a very distinct, perspectival tale to tell. And whilst her story is to some extent situated within the feminist jurisprudential framework as just described, her narrative has also been widely critiqued by, amongst others, a number of feminist legal authors from that same school of thought.165 Hence the reason why I consider that the focus of my research needs to be, not only on telling the premenstrual defendant’s story in alignment with existing feminist jurisprudence, but also on telling her story very much from her own point of view.
Furthermore, as will be shown in the next chapter, the premenstrual defendant’s experiences have been built upon and shaped by a doxa of longstanding cultural beliefs about menstruation and the premenstrual phase of a woman’s menstrual cycle.166 This doxa has in turn fomented a number of beliefs about the premenstrual defendant, and the reality of her experiences has often been influenced by the passing on and perpetuation of the ‘stock stories’ that have been told about her. Rarely however has the premenstrual defendant had the opportunity to tell her own story, at least not without having to face up to and counter the impediments of these cultural beliefs. Instead her personal account has been variously subsumed into a series of other, more dominant, discourses – within the medical, political, and social arenas. By acknowledging, but also attempting to move away from, these cultural stock stories and dominant discourses, and examining the experiences of the premenstrual defendant through the lens of her own story, my aim is to promote her legal narrative as a tool for comprehending her experience.167 Furthermore, exploring her unique narrative in this way allows for an assessment of the criminal law’s ability to take seriously the reality of her status as a stigmatised individual. And whilst it is not the project of this thesis to incorporate the premenstrual defendant’s story as a first-person narrative told in her own words, it is my aim to demonstrate the importance and validity of the exercise of listening to her story and, in my role as
165 As discussed at pp 47-51. 166 Peter Brooks, ‘Narrative Transactions - Does the Law Need a Narratology’ (2006) 18 Yale Journal of Law & the Humanities, 1, 11. 167 Baron (n 162) 81. 53
‘storyteller’, to try to bridge the experiential gap between the reader and the premenstrual defendant.
What then does the act of legal storytelling entail? Peter Brooks describes legal narratology as ‘paying attention to the parts of narrative and how they combine in a plot . . . [from the] standard narrative sequences (stock stories, one might say) . . . to the movement of a narrative through a state of disequilibrium to a final outcome that re- establishes order’.168 Narratology also requires one to look beyond the story itself, to examine the individual perspectives of telling, ‘who sees and who tells, the explicit and implicit relation of the teller to what is told, the varying temporal modalities between the told and its telling’.169 Despite this apparently overarching definition though, the practice of legal storytelling in fact can take a variety of different forms, and previous scholarly work on the rubric of ‘legal narrative’ has identified a number of distinct enterprises. Those that I wish to focus attention on here are: the place for the stories of ‘real’ people within the scope of the law; the stories that existing doctrinal practices tell us about the way that the law works – its problems and also its potential; and the way in which stories can be used strategically as a means of enhancing the substance and norms of the law.170 These are the three storytelling projects that I aim to incorporate into my thesis and here I shall sketch out the purpose and format that I envisage for each of these steps.
i. Telling a ‘true’ story
My first manoeuvre then is to examine the way in which ‘real’ stories about the ‘real’ female characters of the criminal law tend to be told. My review of the relevant case law and the critical academic literature set out earlier in this chapter, has already demonstrated the types of responses that are often evoked by the legal story of the premenstrual defendant. In addition, elsewhere Bell and Fox have presented their own account of the types – or indeed stereotypes – of stories told within the criminal law about women who kill.171 The points that they raise are closely analogous to the stories told about my premenstrual defendant and therefore they are worthy of some further consideration.
168 Brooks (n 166) 2. 169 Ibid 24. 170 Baron (n 162) 80-81. 171 Christine Bell and Marie Fox, ‘Telling Stories of Women Who Kill’ (1996) 5 Social & Legal Studies 471. 54
According to Bell and Fox, there are several stock stories that are told about women who kill.172 On one view, a female defendant may be depicted as a wholly unnatural ‘Lady Macbeth’ type of character, ‘more profoundly evil than any man’.173 Alternatively, some representations are based on – in their words – a ‘Pygmalion’ model and a ‘dupe’ who will do anything for love,174 lacking in agency and adroitness, and caught up in the crimes of others as a victim of circumstance. Elsewhere, Rafter and Stanko dub these first two dominant images of archetypal female criminality as the ‘evil woman’ and the ‘bad little girl’.175 The final stock story referred to by Bell and Fox, is the one whereby the female killer is deemed to be ‘mad’, thus perpetuating a long historical linkage of femininity, female criminality and innate madness.176 And it is this version of the female character of the criminal law that aligns most closely to the stories told about past premenstrual defendants.
Bell and Fox also identify a dynamic relationship between what they term the ‘in-court and out-of-court stories’ that are told about all of these female defendants, with a prosecution narrative often having a symbiotic relationship with the media representation of a particular defendant.177 They argue that the process of dispensing justice in the courtroom involves the ongoing construction and revision of all of the competing narratives which are implicated in a particular defendant’s story. Furthermore, referencing White, they say that, ‘the central act of the legal mind, of judge and lawyer alike, is the conversion of the raw material of life . . . into a story that will claim to tell the truth in legal terms’.178 However, as Bell and Fox also point out, the construction of a coherent legal story will only guarantee a desired legal outcome for a particular female defendant where storyteller and audience share certain assumptions and norms.179 In this respect, given the added difficulties faced by the premenstrual defendant relating to the stigma, taboo and social stereotypes that have long prevailed in relation to menstruation
172 Bell and Fox (n 171) 472-73. 173 Ibid, citing Deborah Cameron and Elizabeth Fraser, The Lust to Kill (Polity Press 1987) 145-46. 174 Ibid. 175 Nicole Hahn Rafter and Elizabeth A Stanko, Judge, Lawyer, Victim, Thief: Women, Gender Roles, and Criminal Justice (Northeastern University Press 1982) 5-6. 176 Bell and Fox (n 171) 473. Discussed further in Phyllis Chesler, Women and Madness (Allen Lane 1972); Elaine Showalter, The Female Malady: Women, Madness and English Culture 1830-1980 (Virago 1987). 177 Bell and Fox (n 171) 476. 178 Ibid 473, citing James Boyd White, The Legal Imagination (Northeastern University 1973) 859. 179 Bell and Fox (n 171) 476, citing W Lance Bennett and Martha S Feldman, Reconstructing Reality in the Courtroom: Justice and Judgement in American Culture (Rutgers University Press 1981) 171. 55
and the premenstrual disorders, it is difficult to say how closely the norms and assumptions of the premenstrual defendant and her legal ‘audience’ might in fact correlate.
For example, some of the stock stories told about female defendants may in fact be quite unpalatable, or at least incomprehensible, to the other courtroom actors, members of the public, and to the wider audience.180 Therefore, as Hilary Allen argues, the strategic legal counter-narrative that the defence often chooses to employ in these cases involves emphasising what might be termed a female defendant’s ‘shy virgin’ narrative, as a means of telling an alternative story about her ‘victimhood’:
At the outset of the trial, the woman is an alleged murderer . . . By the trial’s conclusion however . . . she appears as a helpless and pitiful victim, to whom society owes all manner of compensatory benefits. In the portrayal of women charged with serious violent crimes, such transformations are so recurrent as to be almost standard.181
This strategy, Allen claims, is most likely to succeed when the defence pleaded is diminished responsibility. In this sense, clear comparisons can be made with the main premenstrual defence cases of Craddock, English and Reynolds, discussed earlier in this chapter. This leads me, at this juncture, to speculate that this thesis might in fact be as much a story about the defence of diminished responsibility, as it is about the premenstrual defendant.
As Bell and Fox point out, diminished responsibility has long been an attractive option for the defence teams of female killers, precisely because of its perceived malleability and the fact that it ‘permits the court to take into account the sorts of factors which normally underlie sentencing decisions’,182 something that is of particular resonance to the ideas that I go on to explore later in this thesis, within chapters four and five in particular. But, as they also argue, this can prove to be a double-edged sword for some women, as often the aspects of the story that are taken into account can be heavily gendered, thus allowing for the premenstrual defendant’s story to be subsumed into the
180 Including within feminist scholarship, where ‘something of a veil tends to be drawn over those more uncomfortable cases’ – H Allen, ‘Rendering Them Harmless: The Professional Portrayal of Women Charged with Serious Violent Crimes’ in Carlen and Worrall (n 115) 93. 181 Allen (n 180) 81-82. 182 Bell and Fox (n 171) 480. 56
pre-existing, and potentially damaging, stereotype of female criminality as madness.183 Moreover the defence of diminished responsibility entails the introduction of yet another story into the courtroom – that of the medical professionals who are called to give evidence about the defendant’s diminished responsibility. And, whether their medical evidence supports or negates the fact that the defendant’s responsibility has been ‘diminished’, it is still somewhat juxtaposed against the defendant’s own story, primarily because their accounts often are accorded with greater credibility than even the defendant’s own account, due to the privileged and prioritised nature of their scientifically-based, medical discourse.184
Thus, as Bell and Fox cogently assert in relation to the stories told about their female killers, ‘while the unstructured form of diminished responsibility allows a woman’s voice to be heard, her story is not her own, but is mediated by legal and medical experts’.185 And, as Mahoney points out, even when the defendant is given the opportunity to tell their own story, this is often relayed through the filter of medical expert testimony,186 a factor that appears to have been particularly apparent in past cases involving women who seek to plead a defence predicated on battered women’s syndrome, for example.187 This is an important point that is potentially highly significant to my premenstrual defendant and as such, I shall return to this aspect of the analysis several times over in this thesis. For now, suffice to say it would seem that the first of my projects – telling the ‘true’ story of the real premenstrual defendant – has already raised a number of complexities. Therefore, although I argue that telling the real story is an essential component in the construction of the premenstrual defendant’s narrative, I concede that providing a descriptive biography alone may not be adequate for the analytical endeavours involved in answering my research question. A different narrative approach might also be required, and this brings me to the next narrative project that I aim to undertake in this thesis: telling
183 Bell and Fox (n 171) 480. 184 Ken Plummer, Telling Sexual Stories: Power, Change and Social Worlds (Routledge 1995) 29. 185 (emphasis added) Bell and Fox (n 171) 481. 186 Martha R Mahoney, ‘‘Legal Images of Battered Women: Redefining the Issue of Separation (1991) 90(1) Michigan Law Review 1, 82. It should also be noted that, whilst there is some overlap between a gender-specific defence based on the premenstrual syndrome/disorder and the defence of battered women’s syndrome (BWS), the former can be differentiated on the grounds that there is existing scientific evidence to suggest that the premenstrual disorders are rooted in an internal physiological condition caused by fluctuations of the female hormones, whereas BWS is directly related to circumstances that are extraneous to a woman’s physical or psychological state. 187 See further Katherine O’Donovan, ‘Defences for Battered Women Who Kill’ (1991) 18(2) Journal of Law and Society 219. 57
the doctrinal story of the criminal law, and then deconstructing that narrative to assess how the law works in practice.
ii. Deconstructing the master narrative
This next step entails a move beyond an assessment of the premenstrual defendant’s real story and a recognition that there is another significant narrative at play here: the master narrative188 of the doctrine of criminal responsibility. Thus, ‘step two’ of my storytelling project is a critique of the narrative that is implicated in this doctrine. This involves asking the question: what can we learn from deconstructing the law’s own narrative and challenging the story that traditionally has been told about criminal responsibility?189 Such an enterprise is premised on Regina Graycar’s proposition that women’s experiences and real-life stories tend to be constrained by the existing legal categories within which we are compelled to understand their accompanying legal problems.190
As Graycar argues, often these legal categories do not adequately reflect the reality of women’s lives.191 She cites violence against women as a particular instance of how the law sometimes fails to fully recognise the harms and injuries that a woman might be subjected to in a variety of different arenas, including for example, the fact that women are often, ‘vilified, or infantilized, or sexualized [sic] in media representations’.192 As she says, frequently a woman’s experiences and her story require restructuring to fit into an existing legal framework, possibly to such an extent that the story being told loses all significance to her personally.193 As such, Graycar proposes that the impetus and focus should be not merely on telling these stories, but on a consideration of how we ‘dismantle and rearrange the framework within which these stories are told’.194 Therefore, in relation to the particularised position of the premenstrual defendant, I would argue that the second step in my storytelling project should entail a ‘dismantling and rearranging’ of both the
188 Baron (n 162) 87. 189 Ibid 85. 190 Regina Graycar, ‘Telling Tales: Legal Stories about Violence against Women’ (1996) 8(2) Law and Literature 297. 191 Regina Graycar and Jenny Morgan, The Hidden Gender of Law (Federation Press 2002) ch 1. 192 Graycar (n 190) 299. 193 Ibid 300. 194 Ibid 298. 58
theoretical and substantive legal framework within which the premenstrual defendant’s story is told: that is, the concept of criminal responsibility.
Graycar argues that the starting point for this type of feminist work must be found in the reality of women’s lives and not within the legal definitions themselves. This aspect of the legal storytelling genre goes against much of traditional legal scholarship which, in terms of its treatment of categories of knowledge, has generally tended to privilege the objectivity of the law over subjective facts. According to Graycar, this also means that those trained in the law learn to see the world in particular ways, and these views then come to be seen and replicated – unproblematically – as the only truth that there is. For example, much of the doctrine of criminal responsibility has traditionally been solely conceived of in terms of male, rather than female, criminality.195 Thus, traditionally women’s stories as experiential subjects of the criminal law have been rarely and barely acknowledged.
One strategy is of course for women to present a coherent counter-narrative, to re-educate others about their real-life experiences, and to use that counter-narrative to challenge the existing ideological master narratives within the law: here, the doctrine of criminal responsibility. As set out above, those are the stated aims of the first part of my storytelling project in this thesis – to present the perceived counter-narrative of the premenstrual defendant in order to educate others, including other women who do not share the same premenstrual experiences, and in the process to challenge the status quo of how the criminal law currently assesses her criminal responsibility. However, as Graycar asserts, this counter-narrative strategy may not be an adequate mechanism for effecting social change. She suggests that presenting a counter-narrative alone will not alter the relevant legal structures and in fact will only ever address one part of the problem because, ‘so long as the structural barriers remain in place, these outsider narratives will continue to be ignored or minimized [sic] or, if heard, have only limited impact’.196 The existing dominant structures and constructions will continue to exert their exclusionary influence over the counter-narratives that have been presented within the existing framework.
195 Discussed further in Ngaire Naffine, Criminal Law and the Man Problem (Hart Publishing 2019). 196 Graycar (n 190) 309. 59
Therefore, alongside the recognition of the counter-narrative, Graycar advocates for a closer analysis of the relationship between narrative and potential law reform – a rethinking of the nature of doctrinal legal problems as they affect women in particular; and an assessment of the potential capacity of the law to be restructured, so as to enable women’s stories to be heard effectively. Helpfully, she also identifies several questions that would need to be asked as part of this deconstructive and subsequent reconstructive process. For example, what should the reformulated law look like? What evidence would it use? Whose experiences would be listened to? Whose stories would underpin the doctrine?197 Thus, by shining a light on these questions, Graycar helps to steer my course in achieving the second set of goals in this project of feminist narrative scholarship: a re- telling of the story of the master narrative of criminal responsibility, to find a way for the premenstrual defendant’s counter-narrative to be included in the law without further cementing her perceived ‘outsider’ status.
iii. From narrative to normative
I turn my attention now to the final phase of the project: how to translate the narrative into the normative. Kathryn Abrams has, in some detail, described this task as part of an act of ‘narrative persuasion’.198 The first step in this process, she says, is, ‘Establishing previously unheard perspectives as credible accounts of a social problem’.199 This aspect of narrative persuasion is implicated in what I aim to do when I ‘tell the story’ of the premenstrual defendant, as outlined above. However, in order to convey the normative implications of a narrative, Abrams suggests that feminist scholars must both frame the story in such a way that it can shed light on legal questions and convince their readers that a narrative can contribute to legal change. That is the final part of the project that I envisage for this thesis: providing a convincing account of how the premenstrual defendant’s narrative can contribute to the normative framework of criminal responsibility.
Abrams admits that the relationship between narrative and normative prescription presents a complicated picture. On the one hand much of the work of feminist legal
197 Graycar (n 190) 307. 198 Abrams (n 161) 1030. 199 Ibid 1030. 60
narrative scholars, including my own I believe, displays ‘palpable’ normative legal components – for example, a focus on the ongoing subordination of victimised groups. However, Abrams also states that sometimes the normative message that an author is trying to convey can be lost on an audience, because of the very particularised story that is being told and the fact that, in the telling of the story, some feminist legal narrative authors abandon the central conventions of legal argument in the way that they present their material. Some care has been taken in this thesis to avoid this mistake. Whilst my ultimate aim is to present the premenstrual defendant’s story, I do so against a backdrop of existing doctrinal conventions and from a vantage point that does not lie outside of the machinations of the current criminal justice system. In speaking of the premenstrual defendant, I am not introducing a new legal discourse, or effecting a paradigm shift in substantive practices, but attempting to understand and learn how her experiences might contribute to more ‘malleability’ within conventional criminal-responsibility practices.200
The other important lesson that I take from Abrams’ work is that, ‘the extent to which a narrative scholar will confront a “legal problem” or will advance proposals that mainstream scholars recognize as “normative” will depend on the phase in the social response in which she offers her stories’.201 In essence, how socially aware of the problem – and receptive to it – is the audience to whom the story is being told? For example, Abrams says that those scholars who are attempting to place an unrecognised problem on the social map or the legal agenda, may be more limited in advancing discrete legal proposals. On the other hand, those like myself who are dealing with an acknowledged, albeit possibly misunderstood legal problem, might offer what Abrams terms a ‘midcourse correction’ of the perceived direction in which the law is travelling.202 Therefore, where there is already an existing doctrine in place, as is the case with criminal responsibility, its corollary defences and denials of liability,203 this opens up the possibility of more specific proposals for reform because the narrative is part of the process of responding to a largely functional legal framework that is already in place.204 Abrams’ comments here, particularly with regard to the ‘phase’ of the relevant social response is a highly significant factor for my formulation of a potential legal solution to
200 Bell and Fox (n 171) 480. 201 Abrams (n 161) 1035. 202 Ibid 1035. 203 Discussed in chapter three. 204 Abrams (n 161) 1035. 61
the premenstrual defendant’s story and one that I take up again later in the thesis. Primarily, her analysis teaches me that, in telling the story of the premenstrual defendant, it is as important to be aware of the potential response of the audience, as it is to tell the tale at all.205
So far in this section I have taken some time to articulate the narrative endeavours that I believe are required to tell the premenstrual defendant’s story. I consider that the storytelling path that I have set out provides a viable theoretical structure for answering the question: should the premenstrual defendant be held fully responsible for her criminal actions? However, I am not so naïve as to think that my feminist legal narrative project is without its own pitfalls. Here then, I briefly review a few of the criticisms which might be levelled at this storytelling approach. For example, it seems to be a common view amongst some legal thinkers that the method of legal storytelling is primarily a ‘vehicle of emotion’,206 as opposed to the more mainstream view of law and legal reasoning as abstract, autonomous and hermetically complete. In addition, there is always the danger that the telling of the story may result in the portrayal of a defendant – more specifically, a female defendant – as an unsympathetic character.207 As Bell and Fox point out, within the context of the courtroom it is feasible for a female defendant to be accorded with a negative judicial characterisation of her actions and her lifestyle,208 or even for the medical evidence of a woman’s mental state to be manipulated in such a way as to make her defence unpalatable to the public.209 Thus, the argument in favour of feminist legal narrative is more complex than might first appear, and since its recognition towards the end of the twentieth century as a jurisprudential movement, feminist legal storytelling has faced several charges relating to its inherent problems as a form of critical method – I briefly sketch out here the potential challenges to the question: does feminist legal narrative work?
205 The ‘social phase’ of a legal response could be regarded as being important both in terms of temporality and social context, a point that I develop in more detail in chapter four. 206 Richard A Posner, ‘Legal Narratology’ (1997) 64 University of Chicago Law Review 737 – reviewing Peter Brooks and Paul Gewirtz (eds), Law’s Stories: Narrative and Rhetoric in the Law (Yale University Press 1996). 207 Bell and Fox (n 171) 481. 208 Donald Nicolson, ‘Telling Tales: Gender Discrimination, Gender Construction and Battered Women who Kill’ (1995) 3 Feminist Legal Studies 185, 190-93. 209 Carol Jones, Expert Witnesses: Science, Medicine and the Practice of Law (Clarendon Press 1994). 62
Kathryn Abrams herself has identified four ‘families’ of objections to feminist legal storytelling. The first and most frequently expressed is that narrative scholarship is often lacking in normative legal content, which potentially can hinder any reconstructive project of ameliorative legal reform. The second objection expressed by critics, concerns questions about whether a particular account is ‘true’. The third, as touched on above, relates to the emotionally laden content of many female narratives. And the last refers to doubts about the potentially idiosyncratic and divergent accounts of those whose personal experiences may not match up to the ‘typicality’ of the accounts of the majoritarian group of women.210 Other critics have argued that the case for storytelling’s transformative potential is limited, given that the law is often ‘highly resistant to stories which challenge its own conventions and ideological narratives’.211 Bell and Fox point out yet another concern, and it too is an appropriate consideration for my thesis. Because my research relies on the case reports, media accounts and secondary sources of analysis that I have already problematised, then do I in fact risk becoming complicit in further sensationalising the experiences of the women whose stories I aim to tell?212 All of these concerns, and potential others, I must hold at the forefront of my mind and attempt to counter, as I make my way through the various stages of the feminist legal narrative project that I undertake in this thesis.
Despite these issues though, I maintain that the feminist legal narrative is an appropriate analytical tool for both coming to terms with the complexities of the premenstrual defendant’s criminal responsibility, and for moving forward the wider debates of which she is a part. The first justification for my approach is that the historical narrative that surrounds the premenstrual defendant is a vital element in understanding – and responding to – her current position as a subject of the criminal law. A second rationale is that the role of narrative in general acts as a form of explanation. It gives meanings to human actions and, in so doing it acts as a form of communicative power, itself a significant aspect of the criminal justice process. Lastly, I view narrative as a powerful means of effecting social change. Social reality is itself constructed by the passing on of
210 Abrams (n 161) 978-79. 211 Baron (n 162) 105. 212 Bell and Fox (n 171) 485. 63
certain stories. Therefore, to change the social reality of the premenstrual defendant’s situation, we might need to change the way that some parts of her legal story are told.213
Thus, I see myself in the role of legal storyteller and my aim is to ‘translate[s] and, if necessary, transform[s] the story that a person [the premenstrual defendant] . . . is living (her needs and concerns) into a story that an audience can identify, believe and find compelling’, because ‘the rest of the world can know only from the outside the story any individual is living’.214 My role is not, however, to search for or to assert any one truth within the premenstrual defendant’s narrative, or indeed within the overarching story of the doctrine of criminal responsibility, but to recognise that all stories are different and all involve choices between competing truths.215 In taking on this role, I start from the position that women’s stories are ‘pluralistic, fragmented and contingent rather than linear and causal’.216 And in addition, I am cognisant that there may not be a wholly satisfactory resolution to the premenstrual defendant’s story. As ‘storyteller’ therefore my aim is not necessarily to establish an ultimate ‘truth’ or – to maintain the narrative metaphor, a ‘happy ending’ – for the premenstrual defendant, but to focus on the story that I am trying to tell, because the story itself is telling.217
5. Starting a new chapter?
I end this chapter as I began it at the start:218 with the case study and story of a premenstrual defendant. This is a modern version though, which brings my analysis up to the present day and which – by way of a conclusion – connects together a number of themes and narrative threads that I have drawn attention to in the main body of this chapter. This story serves also to highlight three further considerations which should be borne in mind as I progress with this project. First, that my story of the premenstrual defendant is not a work of fiction, but a response to the facts of real cases. Second, that this narrative is not only an historical account but is relevant too in the modern context.
213 Baron (n 162) 95-97. 214 Ibid 96. 215 Ibid 104. 216 Bell and Fox (n 171) 487. 217 Scheppele (n 156) 2075. 218 With Janet’s story, at p 17. 64
Last, that there is a concrete purpose to the re-telling of this story and that is to propose a potential new solution to the legal problem that is inherent in a criminal case such as the one set out below.
This is the story of Dr Julia Morch-Siddall. A media report from 2018 describes her as a, ‘“Suicidal” doctor . . . who self-medicated with four cans of Stella to help her crippling PMS [and] smashed her Land Rover into another vehicle leaving a man wheelchair- bound’.219 The news article explains that at the time of this incident Dr Morch-Siddall had been suffering from premenstrual dysphoric disorder (PMDD). This condition was described in court as an extreme form of premenstrual syndrome and as ‘a severe mental illness’. It was argued on her behalf that the PMDD had caused her to regularly and compulsively drink alcohol, as a form of self-medication for her mental illness. It was further argued that on the day of the incident the PMDD had caused Dr Morch-Siddall to have suicidal thoughts, which had led to her forming, ‘an intention to drive into some stationary object with a view to ending her own life’. Her drinking that day and her subsequent actions in driving her car whilst under the influence resulted in a serious car accident, when she collided with another vehicle, causing ‘life-changing injuries’ for the male victim who was inside the car at the time. In the police interview afterwards, Dr Morch-Siddall was remorseful but admitted that she could not remember anything about the incident. She pleaded guilty to the driving-related offences of causing serious injury by dangerous driving and failing to provide a specimen.
During sentencing her barrister gave evidence by way of mitigation that previously, Dr Morch-Siddall had ‘led a completely blameless life’ and that she was a ‘fit and proper person’ who, since the offence, had returned to her job as a GP to care for her patients. The media report suggests that the presiding judge had considered her to be at a very low risk of re-offending and had stated explicitly that there was ‘enormous personal mitigation’ in her case which warranted a substantial reduction in sentence. Dr Morch- Siddall was given a suspended eighteen-month prison sentence, a three-year driving ban and a community sentence of eighty hours. Clearly, the mitigating effect of her PMDD had some influence on the sentencing judge. This was notwithstanding the fact that the
219 Eleanor Hayward, Mail Online, 20 September 2018
victim in this case had suffered such catastrophic injuries, itself undoubtedly a significant issue within the context of the case. Regardless of the mitigation of her sentence however, Dr Morch-Siddall was still labelled as guilty of the crimes she had committed whilst suffering from the symptoms of this ‘severe mental illness’ and she still received a stigmatising criminal record as a result.
Should she have been held fully responsible for the crimes that she committed whilst suffering from the effects of her PMDD? What of the fact that there was no suitable substantive legal defence available for her crimes? Is it acceptable that she was obliged to plead guilty in the circumstances, and is it fundamentally unfair to find her criminally responsible for something that she did whilst suffering from the effects of a severe mental disorder? Should there have been an alternative legal outcome available for this premenstrual defendant? Questions such as these are all important considerations for the analysis in this thesis. Thus, as my story of the premenstrual defendant continues to unfold in the remaining chapters, I shall attempt to establish the answers.
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CHAPTER TWO
THE MEDICAL NARRATIVE AND THE MENSTRUAL ‘MARK’
At last, scientific proof PMT is real . . .1
1. Proving a point about the premenstrual disorders?
Taken from the title of a British tabloid news story published in January 2017, the tagline above heralds the discovery of what scientists have called ‘the PMDD gene complex’.2 Seemingly, researchers have now found that women who suffer from premenstrual dysphoric disorder (PMDD) display a distinct cellular difference in their genetic composition, as compared to women who do not suffer from the symptoms of PMDD. This means that ‘women with PMDD have an underlying vulnerability and a different susceptibility to the effect of [their] sex hormones’.3 Therefore, whilst a PMDD sufferer may have completely normal levels of naturally circulating sex hormones within her physiological makeup,4 the endocrines that are involved in her menstrual cycle – estrogen and progesterone – each has the potential to act upon her particular ‘neural vulnerability’ and cause her to experience ‘altered brain network activity, resulting in clinical symptomatology’.5 According to those working in this field of research, the discovery of the PMDD gene complex constitutes empirical evidence of a link between the menstrual cycles of certain affected individuals and their mood and behavioural symptoms. In many respects then, this development could be heralded as a significant scientific breakthrough. However, putting this empirical discovery into its wider socio-historical context, arguably it represents only one part of the overall narrative that circumscribes the premenstrual
1 Jane Feinmann, ‘At last, scientific proof PMT is real’ The Daily Mail, 10 January 2017
disorders – and the women who suffer from them. It raises the question too: what precisely does this prove, if anything? Does it change the story that we tell about the premenstrual disorders? More importantly, does it change the status quo for the premenstrual defendant?
The aim of this chapter is to take a more comprehensive look at the medical discourse that defines the premenstrual disorders, but to do so in a way which takes full account of the other influencing factors which have helped to shape this medical narrative. Based on the research set out here, I make two arguments. The first is that there is now sufficient medical support for premenstrual dysphoric disorder to be classed as a ‘recognised medical condition’ and as such, to form the basis of a potential defence within the criminal law.6 The second is that, despite there being a degree of contemporary consensus about PMDD as a diagnostic category, the uncertainty which still surrounds the premenstrual disorders continues to generate a theoretical space for PMDD to be deemed a problematic social construct. This gives rise to a further set of complex issues in relation to the medicalising and stigmatising discourse that permeates the debate about the premenstrual disorders. These two arguments then, represent the key ‘plot-lines’ within the narrative arc of this story, because each has the potential to shape and influence the premenstrual defendant’s socio-legal story of criminal responsibility.7 Therefore, the recent discovery of the PMDD gene complex needs to be assessed in the light of all these contexts,8 to evaluate where the narrative arc of this part of the medical story might take us next.
This chapter runs as follows then. First, I chart the history of the premenstrual disorders, from ancient origins to their inception as a psychiatric condition within modern
6 As per the defence of diminished responsibility under section 52, Coroners and Justice Act 2009, amending section 2, Homicide Act 1957. See also the Law Commission’s discussions regarding a new category of ‘not guilty by reason of recognised medical condition’ in the Law Commission Discussion Paper, Criminal Liability: Insanity and Automatism (Law Commission 2013). 7 Reference here to ‘the PMDD gene complex’ is for the purposes of establishing the legitimacy of PMDD as a recognised medical condition. I make no claims in this thesis about the potential neuroscientific implications of the ‘altered brain network activity’ of PMDD sufferers. For further general discussion on neuroscience and criminal responsibility, see Stephen J Morse, ‘Criminal Law and Common Sense: An Essay on the Perils and Promise of Neuroscience’ (2015) 99 Marquette Law Review 39; also, Nicole A Vincent, ‘On the Relevance of Neuroscience to Criminal Responsibility’ (2010) 4 Criminal Law and Philosophy 7. 8 As yet the discovery of the PMDD gene complex has not settled the scientific debate about the ‘existence’ of PMDD. For a related discussion on the complexities of the ‘gay gene’ hypothesis, see David Andrew Griffiths, ‘Queer Genes: Realism, Sexuality and Science’ (2016) 15 Journal of Critical Realism 511. 68
medicine.9 Then I assess the contemporary state of play by cataloguing the social and scientific criticisms that continue to be levelled at the recognition of PMDD as a distinct medical condition.10 In the section that follows, I focus on the relevant contextualising narratives, in order to assess the potential influence that these issues might have on the question of the premenstrual defendant’s criminal responsibility. For my purposes here, these relate to the medicalisation of the female body which the recognition of PMDD controversially entails, and the stigmatising discursive constructs inherent in a debate that links women’s menstrual cycles to their mental health and taints this discussion at every level. I close the chapter with a review of the potential implications of my findings for the premenstrual defendant’s status within the law.
To begin though, I shall first chronicle the saga that is the history of the premenstrual disorders. Prior to its modern classification as PMDD, and long before the premenstrual disorders had been mooted as the basis for a potential legal defence, there had already grown up a wealth of societal, cultural and quasi-medical beliefs around the notion of a woman’s premenstrual malady. Whilst often overlooked in contemporary discourse, the archives contain several historical accounts of female complaints which describe symptoms that could be considered akin to PMDD. The next section presents an abridged overview of this ‘medical history’ – which I would ask the reader to consider in tandem with my proposition that PMDD may not in fact be a medical diagnosis solely of the modern age.
2. The premenstrual malady: a medical history
The timeline of the various diagnoses of women’s premenstrual symptoms, syndromes and disorders can be divided into several epochs, each of which would seem to reflect contemporary conceptions of the premenstrual manifestations described by sufferers from
9 ‘Premenstrual dysphoric disorder’ – American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-5 (5th edn, American Psychiatric Association 2013) 625.4 (N94.3) 171. Also, ‘Premenstrual dysphoric disorder’ – World Health Organization, International statistical classification of diseases and related health problems: ICD-11 (11th Revision, World Health Organization 2018) GA34.41. 10 Tamara Kayali Browne, ‘Is Premenstrual Dysphoric Disorder Really a Disorder?’ (2015) 12 Journal of Bioethical Inquiry 313. 69
that era. Other writers have charted these as follows:11 (i) from the ‘wandering womb’ theory of Hippocrates (370 BC) to the emergence of premenstrual hysteria during the Victorian era; (ii) from the discovery of hormones and premenstrual tension (PMT) in 1931, to Dr Katherina Dalton’s influential hypothesis on the premenstrual syndrome (PMS) published in 1953; (iii) the work of Dalton et al as the late twentieth century catalyst for further scientific investigation; and (iv) preliminary moves to include the premenstrual condition in the 1987 Diagnostic and Statistical Manual of Mental Disorders (DSM-III-R), through to the present day. Below I categorise and consider this timeline under a series of revised headings that I consider best reflects the historically contingent characterisation of past medico-discursive trends regarding the premenstrual disorders. The objectives in undertaking this historical survey are twofold: to highlight how the premenstrual woman has been characterised in the medical discourse of the past, and to hypothesise that PMDD may not be the modern social construction that some suppose it to be.
i. From ‘the wandering womb’ to ‘the irritable uterus’
Contemporary writers often cite religious texts such as the Bible, the Torah and the Talmud, as containing the first references to women’s premenstrual difficulties, though these original writings refer only to women’s menses, rather than any identifiable premenstrual negative effect.12 Similarly, early mythological accounts often conflate menses and premenstrual symptoms, although within those texts the references tend to reflect the more positive Hellenistic and early Mediterranean conceptions of women as symbols of fertility and fecundity, with female goddesses worshipped for their virtues and power. Writing in the modern context, Halbreich notes that, ‘It is unknown when menses was transformed from a symbol of the Universe [sic] fertility to “the curse”, and when women’s normal and abnormal fluctuations in mood became attached to that “curse”’.13 It is believed that Hippocrates refers to menstruation, when he describes ‘the blood of
11 PM Shaughn O’Brien and Khaled MK Ismail, ‘History of the premenstrual disorders’ in PM Shaughn O’Brien, Andrea Rapkin and Peter J Schmidt (eds), The Premenstrual Syndromes: PMS and PMDD (Informa UK Limited 2007). 12 For example, Leviticus 15:19-33, refers to a woman being ‘ceremonially unclean’ when she has her ‘menstrual period’. 13 Uriel Halbreich, ‘History and Trajectory of PMS: Towards a Balanced Adaptation and a Biosocial Homeostasis’ (2006) 24 Journal of Reproductive and Infant Psychology 336, 337. 70
females [being] subject to intermittent agitations’.14 Some consider that his treatise The diseases of Virgins also contains the first specific reference to premenstrual symptoms as a phenomenon of medical concern, wherein he is documented as saying that ‘women experience a feeling of heaviness prior to menstruation’.15 This was also the time when the idea began to circulate that a woman’s womb moved freely around her body causing spasmodic diseases of all kinds – the ancient notion of the ‘wandering womb’.16 In addition Pliny is cited as saying that ‘a woman with menstrual discharge may cause milk and wine to become sour, make seeds sterile . . . and even bees will immediately die at the sight of her’.17 The final and perhaps most telling quotation from these ancient texts comes from the Greek poet Semonides who, writing in the sixth century BC, and therefore pre-dating the references above, says of ‘woman’ that, ‘one day she is all smiles and happy . . . on another day she is unbearable to look at or come near to; then she raves so that you can’t [sic] approach her’. Modern authors believe this poem to be a possible allusion to a woman’s premenstrual symptoms.18
During the middle ages and continuing into the early modern era, mentions of menstrual disorders in the historical archives become more sporadic.19 These ‘isolated references’ to conditions that affected only ‘a small minority of women’ account for why some authors consider the premenstrual disorders to be an innovation of modern medicine.20 One scholar in particular though, Michael Stolberg, has sought to correct this idea.21 Based on his extensive survey of Latin and vernacular medical writing, and additional evidence taken from letter consultations of the time, he has argued that, ‘At least from the late Renaissance . . . premenstrual suffering was frequently described to be a very
14 Cited in Lawrie Reznek, ‘Female Woes versus Premenstrual Dysphoric Disorder’ in Peddling Mental Disorder: The Crisis in Modern Psychiatry (McFarland and Co 2015) 173. 15 Cited in Halbreich (n 13) 337. 16 Christopher A Faraone, ‘Magical and Medical Approaches to the Wandering Womb in the Ancient Greek World’ (2011) 30 Classical Antiquity 1, 1. The ‘wandering womb’ theory continued to dominate medical thought during the Roman and Byzantine periods. 17 Cited in Halbreich (n 13) 338. 18 Lawrence Taylor and Katharina Dalton, ‘Premenstrual Syndrome: A New Criminal Defense’ (1982) 19 California Western Law Review 269, 269. 19 Halbreich (n 13) 338. Halbreich refers to an eleventh century scholar named Trotula of Salerno who wrote about ‘young women who suffer . . . who are relieved when their menses are called forth’. Also, Giovanni da Monte of Padua, who in 1558 observed, ‘a connection between (pre?) [sic] menstruation and some aspects of depression’. 20 For example, John TE Richardson, ‘The Premenstrual Syndrome: A Brief History.’ (1995) 41 Social science & medicine (1982) 761, 762. 21 Michael Stolberg, ‘The Monthly Malady: A History of Premenstrual Suffering.’ (2000) 44 Medical History 301. 71
common complaint by physicians and women alike’.22 In a fascinating archival account he catalogues the various contemporary medical understandings of historical notions of premenstrual suffering, and their relationship to changing perceptions of the human body throughout the respective eras.23 From the Renaissance physicians who considered menstruation to be a ‘catharsis’ of ‘peccant’ matter via the ‘expulsive faculty’ of a woman’s womb, to the contrary proposition circulated only a few decades later, that menstruation was instead the evacuation of a ‘plethora’ of a woman’s ‘pure, unspoilt’ blood. Then by the late seventeenth century, Stolberg says, a revised conception had taken hold, with menstrual bleeding seen as the result of a ‘fermentation’ or ‘effervescence’ of the blood. Subsequently, in the eighteenth century, this notion was replaced by the idea that a woman’s menses was because of her ‘irritable uterus’, a disorder that brought on a range of symptoms in many women, including what were described as ‘intense uterine colics’, which physicians from the time likened to the ‘bearing-down pains’ of a woman in childbirth.24
Of even greater interest than these archaic physiological depictions though, is the detail that Stolberg provides about the historical records describing the effect of the menstrual and premenstrual symptoms on a woman’s ‘brain’.25 He cites a survey carried out by the eighteenth-century French physician Brierre de Boismont. This study of over two hundred women found that twenty per cent of them had experienced serious psychological troubles in relation to their menstruation. He writes also of Samuel Auguste Tissot, who in 1765 considered that women were ‘more easily affected by the passions of the mind’, with some becoming sad or depressed and suffering from involuntary fits of weeping or anxiety. In extreme cases, Stolberg says, there were even reports of ‘a menstrual psychosis’ or the ‘periodical deterioration of a pre-existing epilepsy, mania or hysteria’. Women were described as ‘irritable’ or ‘difficult to deal with’. Some became ‘annoyed at the slightest motive’ and had regular fits of rage that only ceased ‘when a fairly abundant menstrual flux has appeared’.26 As the English physician JC Prichard wrote in 1837:
22 Stolberg (n 21) 303. 23 Ibid 304. 24 Ibid 311. 25 Ibid 312. 26 Ibid 312-13. 72
Some females at the period of catamenia undergo a considerable degree of nervous excitement, morbid dispositions of mind are displayed by them at these times, a wayward and capricious temper, excitability in the feelings, moroseness in disposition, a proneness to quarrel with their dearest relatives and sometimes a dejection of mind approaching to melancholia.27
Read together along the continuum of history these accounts are not only instructive in terms of their detail, but arguably they are also capable of giving rise to a certain inference. Taken in their entirety, they represent the evolution of a body of evidence which might indicate that the premenstrual disorders are not solely a disease of the modern age. Conceivably, the fact that some of the symptoms described above mirror those of women who suffer from the severe premenstrual disorders in their modern incarnation, might point to the antecedent existence of PMDD long before it was recognised on a formal medical basis. Therefore, as Stolberg says, ‘the story of PMS offers a salutary warning’.28 This, he intimates, is the warning against the widespread tendency of present-day critics to ‘read’ the body and its disorders in particular ways, and to frame premenstrual suffering as a purely modern, cultural-anthropological, social construction – with no basis whatsoever in scientific fact.29 This brings us to the next chapter in the ‘story of PMS’: the twentieth century progression of the premenstrual medical discourse and the accompanying set of ‘new’ diagnostic labels.
ii. Premenstrual syndrome: a defining moment
Robert T Frank is generally credited with having made the very first menstrual-related medical development of the twentieth century. Taking inspiration from other pioneers in the ‘new’ science of endocrinology,30 he published a paper in 1931 entitled The hormonal causes of premenstrual tension, in which he detailed a series of patient case studies and his experiments in treating women for ‘a condition of indescribable tension and a desire
27 James Cowles Prichard, Treatise on Insanity and Other Disorders Affecting the Mind (Gilbert and Piper 1837), cited in O’Brien and Ismail (n 11) 2. Writing in 1873, the pioneering psychiatrist Henry Maudsley said also that, ‘The monthly activity of the ovaries . . . has a notable effect on the mind and body’, cited in Anne E Walker, The Menstrual Cycle (Routledge 1997) 35. 28 Stolberg (n 21) 321. 29 See for example Anne E Figert, ‘Premenstrual Syndrome as Scientific and Cultural Artifact’ (2005) 40 Integrative Physiological & Behavioral Science 102; also, Judith Lorber and Lisa Jean Moore, Gender and the Social Construction of Illness (Rowman and Littlefield 2002) 71. 30 Ernest Starling and William Bayliss are said to have first used the term ‘hormone’ in 1905, JR Tata, ‘One hundred years of hormones’ (2005) 6(6) Science and Society 490. 73
to find relief by foolish actions difficult to restrain’. 31 He hypothesised that these periodic incapacitating attacks were caused by an accumulation of a woman’s sex hormones produced in her ovaries, in particular an excess of the female hormone estrogen. By way of treatment Frank used dehydration therapy, including diuretics, to remove accumulated fluid and the excess hormones. When this did not work, he X-rayed the woman’s ovaries to kill the ovarian tissue and, in some extreme cases, he surgically removed the ovaries to prevent the further production of estrogen.
At around that same time, a German psychoanalyst residing in the US, but working independently of Frank, described a condition that she called Die prämenstruellen verstimmungen, translated as The premenstrual ill-feeling.32 Karen Horney’s work highlighted the recurrent nature of the premenstrual symptoms, described as ‘intensities of feelings of self deprecation [sic] to the point of pronounced feelings of oppression and of being severely depressed’.33 She too attributed this symptomatology to excess ovarian estrogen and she also emphasised the disappearance of the symptoms with the onset of a woman’s menstrual bleeding. Following the inaugural work of both Frank and Horney, several other theories regarding the aetiology of premenstrual tension were subsequently proposed.34 However, not long after this time, scientific interest began to wane and it was to be some years until the issue of a woman’s premenstrual symptoms would again become the subject of significant scrutiny.
Then, two decades after Frank’s article in 1931, Dr Katharina Dalton took up the baton of premenstrual research. The reader will recall that I introduced Dr Dalton in the previous chapter, as a key character in the development of the legal story about the premenstrual defendant.35 Beyond the confines of the courtroom, Dalton had an equally important role in precipitating and helping to direct the premenstrual medical debate from the middle of the last century onwards. Here I detail the contribution that she made and the reason why her own story is of value to the legal narrative of the premenstrual defendant set out in this thesis.
31 Robert T Frank, ‘The hormonal causes of premenstrual tension’ (1931) 26 Arch Neurol Psychiatry 1053. 32 Karen Horney, ‘Die prämenstruellen Verstimmungen’ (1931) 5(5-6) Zeitschrift für psychoanalystiche Pädagogik 161, cited in O’Brien and Ismail (n 11) 2. 33 Ibid. 34 O’Brien and Ismail (n 11) 3-4. 35 Discussed in chapter one, at pp 39-43. 74
Katharina Dalton was born in 1916 and originally worked as a chiropodist before changing career and becoming a general practitioner. During her time as a trainee in a North London clinic she came to work on a patient case which was to both inspire and determine the trajectory of her ensuing career as a premenstrual expert. One of her female patients reported experiencing regular asthma attacks at a certain point in her menstrual cycle. Reflecting on the patient’s complaint, Dalton realised that she too suffered from a similar pattern of experience, in the form of severe migraines that occurred solely during the premenstrual phase of her menstrual cycle, but which had disappeared during each of her four pregnancies. Based on her own hypothesis regarding this phenomenon, and working alongside the endocrinologist Dr Raymond Greene, Dalton began to treat herself with daily injections of progesterone hormones during her premenstrual phase. She found that this therapy brought relief from her menstrual migraines, and so she began a personal mission to test her theory that the premenstrual syndrome was caused by low or decreasing levels of progesterone during a woman’s menstrual cycle.36
In 1953 Dalton and Greene published a paper which documented their observations as to the effects of progesterone therapy on eighty-four female patients over a four-year period.37 All the women who were involved in the study had complained of symptoms during the premenstrual phase of their menstrual cycle, when levels of progesterone would have been at their lowest concentration. Their various symptoms were documented as including irritability, depression and lethargy, plus headache, oedema, asthma and epilepsy. Notably, all the women tended to be asymptomatic during the other phases of their menstrual cycle. Patients were given either oral doses of a synthetic progesterone or intramuscular injections of natural progesterone, depending upon the severity of their symptoms. Dalton observed that most of the patients who were given progesterone injections experienced reduced symptoms, thus leading her to conclude that it was a deficiency in natural progesterone which was the root cause of the premenstrual syndrome.38
In 1957 Dalton opened the first PMS clinic at the London University College Hospital. Here she saw patients, not only for the purposes of treatment, but also to build on her
36 ‘Obituary: Dr Katharina Dalton,
knowledge about the premenstrual syndrome. This information she then used as her research for subsequent publications, in which she hypothesised about the links between women’s menstrual cycles, their psychiatric illnesses and their criminal acts.39 In later work she produced a clinical definition of the premenstrual syndrome, identified a range of symptoms associated with it, and detailed how it was the timing of these symptoms which was of primary importance in making a diagnosis of PMS.40 Still today Dalton is regarded as one of the most prolific and well-known writers on the subject of the premenstrual syndrome.41 Alongside her research articles, she also published a number of self-help books, founded a patient support group called ‘PMS Help’, and appeared on a 1977 television programme about PMS, entitled Pull Yourself Together Woman, which was watched by over eleven million viewers.42 This is all of course notwithstanding her role as an expert witness in the cases involving premenstrual defendants from that same era. In fact, her legacy is such that at the time of her death in 2004, she was credited in an article in The New York Times Magazine with the eponymous title, The Prophet of PMS.43
Retrospectively, doubts have been raised about the scientific rigour of Dalton’s research, and there has been some subsequent criticism of ‘her blind support for progesterone therapy in the face of the evidence of its inefficacy’.44 Despite this, many medical professionals readily acknowledge that Dalton should be credited for drawing attention to the premenstrual syndrome, ‘as without her crusading intervention the problem of PMS therapy may well have been ignored’.45 And this is why Katharina Dalton is such an important character in the story, not only of the premenstrual defendant, but also of the premenstrual disorders per se. Given that ‘her views were the main stimulus to interest in PMS in the third quarter of the 20th [sic] century’,46 then she is clearly a key protagonist
39 For example: Katharina Dalton, ‘Menstruation and Acute Psychiatric Illnesses’ (1959) 1 British Medical Journal 148; Katharina Dalton, ‘Menstruation and Accidents’ (1960) 2 British Medical Journal 1425; Katharina Dalton, ‘Cyclical Criminal Acts in Premenstrual Syndrome (1980) 316 The Lancet 1070. 40 Katharina Dalton, ‘The Premenstrual Syndrome and Progesterone Therapy’ (2nd edn, William Heinemann Medical Books Limited 1977). 41 C Petersen, RPh, CNP - Women’s International Pharmacy ‘A Tribute to Katharina Dalton’
within the story that I set out to tell in this thesis. Primarily, it was Dalton’s input that led to the metamorphosis of the premenstrual syndrome into the recognised clinical entity that we now know as PMDD, and as such she played a vital role in the eventual discovery of the PMDD gene complex referred to at the head of this chapter. The next section follows this timeline of events and brings the story up to the present day.
iii. Premenstrual dysphoric disorder and the DSM-5
In the era from the 1950’s to the 1980’s, and then beyond, research into the cause and treatment of the premenstrual syndrome had gone from, anecdotal reporting of cases, through to non-blind trials of proposed therapies, and then on to controlled, randomised and double-blind placebo trials of a variety of treatments.47 As awareness about the existence and impact of the premenstrual syndrome had started to permeate the public consciousness, the impetus for new research had begun to gain momentum.48 However, it was only when Dalton appeared in court as an expert witness that the next phase of scientific development began to take shape. Following the decisions in Craddock/Smith, English and Reynolds,49 and the ensuing media interest in these cases, some clinicians started to pay closer attention to the premenstrual syndrome, and the scientific debate began to shift focus. The question was no longer if it could or should be classed as a medical disorder, but rather what was this condition exactly?
In response to the surge in public attention, and the ongoing disputes that surrounded the syndrome,50 the US National Institute of Mental Health held a conference in 1984 to draft a set of diagnostic criteria for the condition. This gathering brought together an array of specialists to discuss the premenstrual syndrome as an ‘entity [at the] interface between biomedical research, clinical practice, social, legal, and psychological concerns’.51 In the published proceedings from the conference, this newly formed group state that the express purpose of the gathering was to find a way of utilising and applying some of the information about the premenstrual syndrome that was starting to emerge from the
47 Robert L Reid and SSC Yen, ‘Premenstrual Syndrome’ (1981) 139 American Journal of Obstetrics and Gynecology 85. 48 See further Mary B Parlee, ‘Media Treatment of Premenstrual Syndrome’ in Benson E Ginsburg and Bonnie Frank Carter (eds), Premenstrual Syndrome: Ethical and Legal Implications in a Biomedical Perspective (Plenum Press 1987). 49 Discussed in chapter one, at pp 25-30. 50 Judith M Abplanalp, ‘Premenstrual Syndrome’ (1983) 8 Women & Health 107. 51 Ginsburg and Carter (n 48) xiii. 77
behavioural sciences sphere. Here were the beginnings of an interest in the premenstrual disorder as a psychiatric, rather than a purely gynaecological or endocrinological, phenomenon.
Following the conference, some US proponents for the premenstrual condition began to adopt a new terminology: late luteal phase dysphoric disorder, or LLPDD.52 This was premenstrual dysphoric disorder in its first psychiatric incarnation. Although the premenstrual syndrome had been the original catalyst for this new classification, LLPDD was considered to be a more severe version of Dalton and Greene’s description of the condition. The anxiety-related and depressive symptoms of LLPDD were deemed to be more acute than those of PMS, and capable of causing serious interference with a sufferer’s employment, social activities and relationships with others.53 In 1987, LLPDD and the accompanying set of new diagnostic criteria debuted in the American Psychiatric Association’s revised third edition of the Diagnostic and Statistical Manual of Mental Disorders, DSM-III-R.54 However, following opposition from several quarters – including from those on the LLPDD Work Group itself – it was presented only as a topic for further potential study.55 Referred to in the main body of the DSM-III-R as an ‘Unspecified Mental Disorder’, it was placed instead within a new section called ‘Appendix A’ – which had been created specifically so as to include LLPDD.56
The decision to add LLPDD to the DSM-III-R caused significant controversy.57 This was formal recognition of a highly controversial set of diagnostic criteria for a mental health disorder that was only attributable to women.58 Not only was this move seen to contribute to the trend in the medicalisation of women’s normal physiological and psycho-social life factors, it was also perceived as having the effect of labelling, and thereby stigmatising,
52 J Endicott, ‘History, Evolution and Diagnosis of Premenstrual Dysphoric Disorder’ (2000) 61 Suppl 12 The Journal of Clinical Psychiatry 5, 5. ‘Dysphoric’ meaning ‘a profound state of unease or dissatisfaction’. 53 The Work Group for the DSM-III-R wanted ‘to narrow the boundaries of the syndrome to those that would define a disorder’, Robert L Spitzer and Janet B Williams, ‘The revision of DSM-III: process and changes’ in Juan E Mezzich and Michael von Cranach (eds), International Classification in Psychiatry: Unity and Diversity (Cambridge University Press 1988) 263. 54 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-III-R (3rd edn rev, American Psychiatric Association 1987). 55 Peter Zachar and Kenneth S Kendler, ‘A Diagnostic and Statistical Manual of Mental Disorders History of Premenstrual Dysphoric Disorder’ (2014) 202 The Journal of Nervous and Mental Disease 346, 346. 56 Ibid. 57 Robert L Spitzer and others, ‘Late Luteal Phase Dysphoric Disorder and DSM-III-R’ (1989) 146 American Journal of Psychiatry 892. 58 See further Paula J Caplan, They Say You’re Crazy: How the World’s Most Powerful Psychiatrists Decide Who’s Normal (Addison-Wesley 1995). 78
many women as mentally ill.59 In fact, a subsequent Work Group set up to revise the DSM-III-R believed there to be insufficient evidence to justify the inclusion of LLPDD as an accepted diagnostic entity in the forthcoming fourth edition.60 Despite these concerns though, some still thought that it was necessary to acknowledge the symptoms of ‘dysphoria’ that occurred in some women during their premenstrual phase. Therefore, having been renamed as premenstrual dysphoric disorder (PMDD), an agreement was reached to include it in Appendix B61 to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders, the DSM-IV, published in 1994, and to list it within the main text as a ‘Depressive Disorder not otherwise Specified’.62
The inclusion of LLPDD/PMDD in the appendices of the earlier editions of the DSM represented a series of tentative first steps in acknowledging a certain set of premenstrual symptoms as a specific psychiatric category. The primary rationale behind this recognition was for the purposes of diagnosis and potential treatment. In addition, it also enabled a more standardised scientific approach to the disorder, which was necessary to generate the funding required for further research.63According to the classification contained within the DSM-IV, in order to be diagnosed with PMDD a woman had to present as suffering from at least five of the listed symptoms during the late luteal/premenstrual phase of her menstrual cycle. As was the case with the premenstrual syndrome, PMDD was still identified by the timing of symptom onset, but this means of diagnosis was proving problematic and it was difficult for researchers to establish the true prevalence of the disorder in the general population of women.64 In an attempt to improve diagnostic accuracy, women were advised to keep a diary of their symptoms.65 Interestingly, this prospective daily record of the pattern and severity of a sufferer’s premenstrual symptoms over the course of at least two menstrual cycles is still considered to be the primary means of diagnosis of the disorder.
59 Paula J Caplan, Joan McCurdy-Myers and Maureen Gans, ‘Should “premenstrual syndrome” be called a psychiatric abnormality?’ (1992) 2 Feminism and Psychology 27. 60 Zachar and Kendler (n 55) 347-51. 61 ‘Criterion Sets and Axes Provided for Further Study’. 62 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-IV (4th edn, American Psychiatric Association 1994). 63 Loes Knaapen and George Weisz, ‘The biomedical standardization of premenstrual syndrome’ (2008) 39(1) Stud Hist Phil Biol & Biomed Sci 120. 64 ‘Previous studies suggested a prevalence of 7% to 54%’, but, based on prospective daily ratings scores, ‘the mean prevalence for premenstrual dysphoric disorder was approximately 2%’, CN Epperson and others, ‘Premenstrual Dysphoric Disorder: Evidence for a New Category for DSM-5’ (2012) 168(5) Am J Psychiatry 465, 470. 65 Ellen W Freeman, Robert J DeRubeis, Karl Rickels, ‘Reliability and validity of a daily diary for premenstrual syndrome’ (1996) 65(2) Psychiatry Research 97. 79
Then in 2013, the American Psychiatric Association finally confirmed the formal status of premenstrual dysphoric disorder as a mental health condition, by including it as a distinct classification in the main body of the text – within the ‘Depressive Disorders’ section – of the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders, DSM-5.66 The classification criteria for premenstrual dysphoric disorder contains the following list of potential symptoms that may be used to confirm a diagnosis:67
(1) marked affective lability (e.g. mood swings, feeling suddenly sad or tearful, or increased sensitivity to rejection); (2) marked irritability or anger or increased interpersonal conflicts; (3) marked depressed mood, feelings of hopelessness, or self- deprecating thoughts; (4) marked anxiety, tension, and/or feelings of being keyed up or on edge; (5) decreased interest in usual activities (e.g., work, school, friends, hobbies); (6) subjective difficulty in concentration; (7) lethargy, easy fatigability, or marked lack of energy; (8) marked change in appetite, overeating, or specific food cravings; (9) hypersomnia or insomnia; (10) a sense of being overwhelmed or out of control; (11) physical symptoms such as breast tenderness or swelling, joint or muscle pain, a sensation of “bloating” or weight gain.
According to the criteria set out in the DSM-5, a woman may be diagnosed with premenstrual dysphoric disorder if she presents with a particular pattern of these emotional, behavioural, psychological, and physical changes during the week prior to menstruation. These symptoms must occur in most of her premenstrual phases over the course of the past year, and they should then diminish, if not completely disappear, within a few days of the onset of menstruation. The criteria within the classification also state that:68 the symptoms must be associated with clinically significant distress resulting in, for example, avoidance of social activities and decreased productivity and efficiency at work, at school or in the home; the disturbance should not be the result of the exacerbation of another mental disorder, although it could co-occur with other conditions; it should be confirmed by prospective daily ratings during at least two symptomatic menstrual cycles; and the symptoms should not be attributable to anything else, such as another medical disorder or substance abuse.
66 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-5 (5th edn, American Psychiatric Association 2013) 170. 67 Ibid, code 625.4 (N94.3). 68 American Psychiatric Association (n 66). 80
In addition, following the inclusion of PMDD in the 2013 DSM-5, premenstrual dysphoric disorder has now been recognised in the Eleventh Revision of the World Health Organization’s International Classification of Diseases, the ICD-11, published in 2019.69 According to the ICD-11 definition, PMDD is characterised by ‘a variety of severe mood, somatic or cognitive symptoms that begin several days before the onset of menses, start to improve within a few days, and become minimal or absent within approximately one week following the onset of menses’.70 This pattern of mood symptoms must have occurred during a majority of a woman’s menstrual cycles over the past year and be severe enough to cause significant distress or functional impairment. It is also differentiated from what is referred to as the ‘far more common premenstrual tension syndrome’.71 Notably however, the primary location in the ICD-11 for premenstrual dysphoric disorder is within the chapter on diseases of the genitourinary system, although it is also cross-listed in the subgrouping of depressive disorders, due to the prominence of mood symptomatology. This is suggestive perhaps of the fact that there is still some doubt about the exact status of PMDD, as either a primarily physiological or psychological disorder, and that it remains a site of contested diagnosis.
Despite this, it is clear that the formal status of the premenstrual disorders has gained significant ground in recent decades. Advancements in clinical knowledge about the conditions of premenstrual syndrome and premenstrual dysphoric disorder have resulted in a heightened interest, and an incremental increase in scientific and scholarly research output about the premenstrual conditions. An online search of the currently available information on premenstrual dysphoric disorder reveals a burgeoning body of literature. Although it is beyond the scope of this thesis to chart these advancements in full, it is helpful to briefly scan and sketch the current scientific landscape.72 As already
69 World Health Organization (n 9). 70 Geoffrey M Reed and others, ‘Innovations and Changes in the ICD-11 Classification of Mental, Behavioural and Neurodevelopmental Disorders.’ (2019) 18 World Psychiatry: Official Journal of the World Psychiatric Association (WPA) 3, 10. 71 Ibid. The American Congress of Obstetricians and Gynaecologists (ACOG) still refers to both ‘premenstrual syndrome’ and ‘premenstrual dysphoric disorder’, Sabrina Hofmeister and Seth A Bodden, ‘Premenstrual Syndrome and Premenstrual Dysphoric Disorder’ (2016) 94(3) Am Fam Physician 236. As does the Royal College of Obstetricians and Gynaecologists (RCOG) in the UK: LJ Green, PMS O’Brien, N Panay and M Craig, on behalf of the Royal College of Obstetricians and Gynaecologists, ‘Management of premenstrual syndrome: Green-top Guideline No. 48’ (2017) 124(3) BJOG e73 - also available online at
established, researchers have now identified what they call ‘the PMDD gene complex’.73 Beyond this discovery though, there are still several overlapping theories, implicating various physiological mechanisms as the aetiological cause of the disorder. Some scientists have focused on a hormonal sensitivity hypothesis.74 Others have postulated theories relating to the altered brain structure of sufferers.75 Further clinical complexities have also been identified, with some researchers hypothesising that there may not be one determining cause to PMDD, but rather several interwoven factors.76 More recently, it has also been suggested that there might in fact be multiple sub-types of PMDD, and that the precise aetiology may vary between sufferers, according to the temporality of their symptoms.77 Diagnosis is still difficult and there are no objective physiological mechanisms, such as a blood test, hormonal sampling or genetic profiling that can lead to a reliable means of identifying a sufferer. Therefore, patient self-report of symptoms is still the only route to effective diagnosis.78 This itself is problematic because it is dependent, not only on the sufferer being aware of PMDD as a medical disorder, but also being able to identify that her experiences are not in fact the symptoms of a ‘normal’ premenstrual woman.
In terms of recommended treatment, or at least the management of symptoms, some clinicians suggest that cognitive behavioural therapy can help sufferers.79 Alternatively, some doctors prefer to prescribe selective serotonin reuptake inhibitors (SSRI’s), for example fluoxetine or, as it is more commonly known, Prozac.80 If these prove to be ineffective for the individual sufferer, there is the possibility of gonadal suppression to
73 Dubey and others (n 2). 74Carley J Pope and others, ‘The Hormonal Sensitivity Hypothesis: A Review and New Findings’ (2017) 102 Medical Hypotheses 69. 75 Peng Liu and others, ‘Altered Brain Structure in Women with Premenstrual Syndrome’ (2018) 229 Journal of Affective Disorders 239. 76 Edwin R Raffi and others, ‘The etiology of premenstrual dysphoric disorder: 5 interwove pieces’ (2017) 16(9) Current Psychiatry 20. 77 Tory A Eisenlohr-Moul and others, ‘Are There Temporal Subtypes of Premenstrual Dysphoric Disorder? Using Group-Based Trajectory Modeling to Identify Individual Differences in Symptom Change’ (2019) Psychological Medicine 1. 78 Tory A Eisenlohr-Moul and others, ‘Toward the Reliable Diagnosis of DSM-5 Premenstrual Dysphoric Disorder: The Carolina Premenstrual Assessment Scoring System (C-PASS)’ (2017) 174 American Journal of Psychiatry 51. 79 Robert L Reid and Claudio N Soares, ‘Premenstrual Dysphoric Disorder: Contemporary Diagnosis and Management’ (2018) 40 Journal of Obstetrics and Gynaecology Canada 215. 80 Foteini Alevizou, Eleni Vousoura and Angeliki Leonardou, ‘Premenstrual Dysphoric Disorder: A Critical Review of Its Phenomenology, Etiology, Treatment and Clinical Status’ (2018) 14 Current Women's Health Reviews 59. 82
prevent the circulation of a woman’s sex hormones.81 In addition, a new drug ‘Sepranolone’,82 is currently under development and has shown promising results in trials, but this is not yet available to sufferers and so its efficacy has still to be fully tested. Finally – and perhaps also, most controversially – the treatment option which has been shown to provide the best results for sufferers, is the removal of a woman’s reproductive organs by means of hysterectomy and ovariectomy, leading to cessation of her menstrual cycle and the surgical inducement of menopause.83 Whilst this is generally reserved for sufferers who have proven resistant to treatment by means of all other therapies, and is not undertaken lightly, it is a reality for some sufferers. In truth, the physical, psychological and ethical ramifications of some of these treatment options are themselves worthy of an entirely separate chapter, but space is limited, and so here I must leave the reader to contemplate for themselves the potential implications of this aspect of the premenstrual sufferer’s story.
Thus, I turn my attention back to the main focus of this chapter – the contextual significance of the ‘medical history’ set out above and its potential import for the premenstrual defendant’s legal narrative. In summation, and in anticipation of the next section, it is apparent from the scientific and medical texts, that premenstrual dysphoric disorder or PMDD is now the generally accepted nomenclature for a discrete and potentially debilitating premenstrual condition, which can cause certain psychological symptoms in a subset of affected individuals.84 It is clear too – from the stories which sufferers tell for themselves – that PMDD can have serious consequences for some.85 Nevertheless, contemporary theorists have been left wondering, ‘why is it that, despite all of this research, many clinicians have no idea that PMDD . . . is an official diagnosis?’86 In fact, these same theorists have themselves offered an answer to that question, in that,
81 Nick Panay and John WW Studd, ‘The management of PMS/PMDD through ovarian cycle suppression’ in O’Brien and Ismail (n 11) 121. 82 Marie Bixo and others, ‘Treatment of Premenstrual Dysphoric Disorder with the GABAA Receptor Modulating Steroid Antagonist Sepranolone (UC1010) – A Randomized Controlled Trial’ (2017) 80 Psychoneuroendocrinology 46. 83 Nick Panay and Anna Fenton, ‘Severe PMS/PMDD – Is It Time for a New Approach?’ (2015) 18(3) Climacteric 331. 84 Symptoms can also include suicidal ideation: Fran Lowry, ‘Suicidal thoughts common in women with PMDD’
‘Perhaps we are still wedded to our societal values regarding the validity of the condition’.87 This raises a crucial point. For if the validity and legitimacy of PMDD as an accepted condition is as much concerned with particular social values as it is the medical status of the disorder, then it would appear that there might still be another set of hurdles for the premenstrual defendant to overcome in order to ‘prove her case’. In the section that follows, I elaborate a little on what these ‘societal values’ might be comprised of. The aim here is to introduce the reader to some of the additional obstacles that the premenstrual woman – and thereby also the premenstrual defendant – is still often confronted with when she attempts to tell her story in the contemporary context.
3. Problematising the PMDD diagnosis?
Despite the acknowledgement of premenstrual dysphoric disorder as a legitimate medical condition, some critics have continued to resist the diagnosis.88 Inevitably this itself has prompted a response from those seeking to establish the full diagnostic status of PMDD. Writing in 2014, Hartlage, Breaux and Yonkers conducted a thorough review of the main concerns already raised about the inclusion of premenstrual dysphoric disorder in the DSM-5.89 Helpfully, their work also forms a succinct and cogent rejoinder to these criticisms. In total they identified thirty-eight ‘pressing arguments’ against the recognition of PMDD but focused their attention on the six most frequently cited concerns.90 First, that the inclusion of PMDD in the DSM-5 is economically, politically, legally and domestically harmful to women. Second, that putting a hormonal label on women only – and not men – is further damaging to them as a social group. Third, that the research validating PMDD has been faulty – notably, this is the only concern which relates to the science of PMDD, and not the social consequences of its recognition. Fourth, that PMDD is a culture-bound condition and predominantly a Western-specific disorder. Fifth, that women’s PMDD ‘symptoms’ are due to external factors, rather than a medical condition. And finally, that PMDD was forced on the public by pharmaceutical companies purely in order to sell their products. Unfortunately, there is not the space here to rehearse all the counter arguments that they present. Suffice to say that they do address
87 Baller and Ross (n 3). 88 Browne (n 10). 89 SA Hartlage, CA Breaux and KA Yonkers, ‘Addressing Concerns about the Inclusion of Premenstrual Dysphoric Disorder in DSM-5.’ (2014) 75 The Journal of Clinical Psychiatry 70. 90 Ibid. 84
each criticism with a significant degree of conviction,91 though whether their arguments successfully rebut these ‘societal concerns’ does necessarily depend on the view that one takes with regards to the validity of PMDD in the first place.
What this dialectic does clearly highlight though, is that the controversy regarding PMDD is still far from settled in some quarters. That said, premenstrual dysphoric disorder has now been classified as a recognised medical condition. Arguably then, it can be taken into account as an excusatory factor, either as part of a substantive defence or as mitigation, in the case of a premenstrual defendant who comes before a criminal court. But that is still not the end of the story. For as I set out in chapter one, the law is not a hermetically sealed institution and the courts are not immune to the ‘stock stories’ and debates about ‘societal values’ that might orbit around particular defendants. According to the analysis set out above, it would seem that there are several ‘in-court’ and ‘out-of-court’ stories that continue to vitiate the premenstrual defendant’s account. These require some further attention in order to assess their potential impact on her legal status.
Two key themes – or narrative threads – emerge from the historical and contemporary dialogues already discussed. First, there is the medical narrative. Clearly this has dominated the debate so far, perhaps understandably so, given that the medical status of the premenstrual disorders is of central importance in the legal story of the premenstrual defendant. Second, the socio-cultural doxa that attaches almost automatically to the social discourse surrounding the menstrual cycle,92 alongside the taboo, shame and stigma that tends to accompany the discussion of a woman’s premenstrual condition. Indeed, these are the two motifs that I identified at the head of this chapter: the medical narrative and the menstrual ‘mark’. They also relate to the two most prevalent ‘stock stories’ that come to the fore when discussion turns to the position of the premenstrual defendant. These are the stories that are told about the medicalisation of menstruation, and the stigmatisation of the premenstrual woman. ‘Medicalisation’ here relates to the proposition that, in recognising the premenstrual disorders, the medical profession has taken social control of the biological processes associated with women’s menstrual cycles, thereby pathologising and psychiatrising what is in fact an inherently natural process. ‘Stigmatisation’ is connected to the idea that, within this same process, women as a social
91 The ‘evidence validates the existence of PMDD. PMDD simply is. Women need help to relieve the negative effects of the disorder’, Hartlage, Breaux and Yonkers (n 89) 75. 92 Discussed in chapter one, at pp 54-56. 85
group have been labelled as suffering from a mental health disorder which the recognition of PMDD ultimately entails. Here I shall explore these inter-related themes, in respect of the concepts that they embody and their influence on the discourse to date.
i. The medicalised narrative
Approximately half the world’s population experiences menstruation. It marks out one of the most important biological differences between the sexes, given that it is a natural part of the life cycle of many women and an essential element of their reproductive capabilities.93 For most individuals it is a very personal matter, and discursively it tends to fall squarely on the private side of the polarised trope of ‘public versus private’.94 Consequently, any intrusion upon that private sphere, or perceived interference with a woman’s autonomy over her own menstrual cycle, is often viewed quite negatively.95 This can include attempts on the part of the medical profession to pathologise – and thereby to regulate – what many women view to be a wholly natural process. Hence the increasing medicalisation of menstruation and the premenstrual disorders, as described in the preceding sections, has been the subject of significant feminist scrutiny.96 Often viewed as a highly politicised manoeuvre,97 the process of medicalisation allows a predominantly male medical profession to monopolise the menstrual disorder discussion; to import a set of empirical ‘truths’ and supposedly neutral norms into the apparently objective scientific debate about the premenstrual disorders; and to exert social control over women, under the guise of medical altruism.98 Or so the argument goes.
93 For more information, see The Society for Menstrual Cycle Research, ‘The Menstrual Cycle: A Feminist Lifespan Perspective’,
The concept of medicalisation, as made famous by Zola99 and Illich,100 in fact has its roots in the sociology of deviance. Jesse Pitts is generally credited with being the first to use the term in relation to the regulation of individuals by means of ‘social control’.101 He argued that ‘redefining certain aspects of deviance as illness rather than crime’ is one means of attempting to control deviant behaviour in the populace, and that ‘medicalization [sic] is one of the most effective means of social control’.102 From this first incarnation, medicalisation went on to become an important concept in sociological discussions of medicine as a social construct. As Zola described it, ‘[Medicine] is becoming the new repository of truth, the place where absolute and often final judgements are made by supposedly neutral and objective experts’,103 to the point even of replacing, in some respects, the law as a major institution of social control.
Peter Conrad is now regarded as the leading sociological exponent of the concept. Writing in 1975, he described medicalisation as the process of ‘defining behaviour as a medical problem or illness and mandating or licensing the medical profession to provide some type of treatment for it’,104 observing also that certain negative consequences can result from the process of medicalisation. First there is the issue of ‘expert control’, which relates to the process of removing a particular problem from the realm of public discussion and positioning it within the purview of the medical professionals. Then there is ‘medical social control’, or rather the process of allowing certain things to be done to an individual under the heading of medical treatment. In addition, medicalisation can entail the ‘individualisation of social problems’, whereby the individual is pathologised, rather than focusing on the issues that may be inherent in the social system itself. Finally, Conrad identifies the ‘de-politicisation of deviant behaviour’, which results from this individualism and means that it is the deviant individual who is expected to change, and not the system that she lives in.105 Some of these criticisms – in particular the concept of individualisation contained in the last two – clearly resonate with a number of the objections to the recognition of the premenstrual disorders that I have discussed
99 Irving Kenneth Zola, ‘Medicine as an Institution of Social Control’ (1972) 20 The Sociological Review 487. 100 Ivan Illich, Medical Nemesis (Marion Boyars 1975). 101 Jesse Pitts, ‘Social Control: The Concept’, International Encyclopaedia of the Social Sciences (Macmillan 1968). 102 Ibid 391. 103 Zola (n 99) 487. 104 Peter Conrad, ‘The Discovery of Hyperkinesis: Notes on the Medicalization of Deviant Behavior’ (1975) 23 Social Problems 12, 12. 105 Ibid 18-19. 87
elsewhere.106 On this view then, it is perhaps logical that some feminist commentators have in the past reacted so vehemently to what they perceive to be the medicalisation of menstruation and the premenstrual disorders.
Not only have the premenstrual disorders been medicalised though, but they have been subsumed under the specific nosology of psychiatry. Therefore, the formal recognition of premenstrual dysphoric disorder as a category in the DSM-5 has been further criticised on the basis that this represents the psychiatric profession’s co-opting of the existing medical and scientific evidence, in order to pathologise premenstrual change and to ‘discover’ a new disorder of PMDD.107 Furthermore, by situating the premenstrual dysphoric disorder within this psychiatric framework, this move helps to give credence to its validity as a ‘real’ disorder.108 As Figert explains,109 diseases and disorders achieve legitimacy when the scientists or physicians, who have the ‘cognitive authority to define, describe or explain’ reality, call those disorders real and subsume them into their own ‘regimes of knowledge’.110 Given that the DSM is now the central organising rubric for mental disorders, then inclusion of PMDD within this psychiatric framework metaphorically endorses it as a valid disorder. And, as Browne points out, ‘In a world where the medical narrative trumps all other narratives, the significance of this move cannot be overstated’.111
In effect then, the medicalising discourse surrounding PMDD creates its own legitimising framework, because medicine has the ‘economic, political and institutional power to shape our view of the world’.112 Accordingly, the ‘psy’ professions of psychiatry and psychology are in a position to shape our modern understandings about the premenstrual disorders, and to present certain ‘truths’ – or ‘stories’ – about PMDD, to the wider society. Thus, the professional framework of PMDD as a psychiatric disorder is legitimated, and
106 Discussed in relation to ‘the gender issue’ in chapter one, at pp 46-50. 107 Jane M Ussher, Managing the Monstrous Feminine (Routledge 2006) 62. 108 Shimu Khamlichi, Medicalising menstruation: the case of premenstrual dysphoric disorder and the DSM-5 (Thesis)
then replicated, within society.113 Nikolas Rose argues that the medical ‘truths’ which are then promulgated can hold a particular kind of social authority, which is often linked to the problematisation of certain issues and the subjectification of distinct groups in society.114 Therefore, it has been hypothesised that some people – here, women in particular – can internalise the medicalised ‘truths’ of these stories, and then incorporate them into their own lived realities.115 Ussher describes these ‘truths’ as ‘fictions framed as facts that serve to regulate femininity’,116 arguing also that, through this process of medicalised subjectification, modern women come to label themselves as suffering from PMDD or a form of premenstrual syndrome.117 Indeed, as Ussher has found, within women’s own narratives, the premenstrual disorders are generally constructed as a medical phenomenon, rather than a purely natural physiological process, and some women view these medical accounts of the premenstrual disorders as explaining and legitimating their own experiences.118 According to Ussher and Perz, constructing PMDD as a medical problem allows women to embrace the ‘label’ of illness, and gives them something to ‘blame’, for their stresses, life situations and an inability to cope with the pressures of the modern world. But this surely begs the question: if a sufferer’s premenstrual condition is merely a psychosomatic manifestation of the difficulties of being a woman, why do her symptoms only occur premenstrually?119
Moreover, the type of medicalisation theory that Ussher refers to, makes the assumption that doctors wield complete power over their premenstrual patients. Her account starts from the position that the institutional organisation of medical knowledge has traditionally been manufactured by men situated in positions of power.120 Therefore, any male-dominated medical account of the premenstrual disorders should be viewed with a degree of hegemonic suspicion. As Ballard and Elston have pointed out though, this presumptive and partisan view of male medical dominance also assumes the existence of
113 Susan Markens, ‘The Problematic of “Experience”: A Political and Cultural Critique of PMS’ (1996) 10 Gender & Society 42. 114 Rose (n 110) 75. 115 For a general discussion on this point, see Barbara Ehrenreich and Deirdre English, For Her Own Good, (Pluto 1979). 116 Ussher (n 110) 133. 117 Writing in 2003, she identified five inter-connected ‘truths’ which she wrote about under the heading of ‘Regimes of Objectified Knowledge that construct PMDD’, Ussher (n 110) 134. 118 Jane M Ussher and Janette Perz, ‘PMS as a Process of Negotiation: Women’s Experience and Management of Premenstrual Distress’ (2013) 28 Psychology & Health 909. 119 Hartlage, Breaux and Yonkers (n 89) 74. 120 Jane M Ussher, Women’s Madness: Misogyny or Mental Illness? (Harvester Wheatsheaf 1991). 89
‘a docile lay populace, in thrall to expansionist medicine’.121 Such generalisations about patient passivity and the subjectification of women do not take account of the fact that premenstrual sufferers might in fact be capable of engaging in the medicalisation process for themselves – challenging it where necessary, but sometimes directly encouraging it.122 It fundamentally fails to acknowledge that women do construct their own stories about their premenstrual experiences, and that they have been telling these stories for a long time.123 Consequently, this overtly politicised renunciation of the medical and scientific evidence of the premenstrual disorders can itself operate in such a way as to deny the ‘truth’ of a premenstrual sufferer’s experiences. Thus, whilst the socio-political arguments against the medicalisation of the premenstrual disorders may be coherent and intelligible, it should be understood that they have the potential to obscure the reality of some sufferers’ lives and to detract from the legitimacy of their personal accounts. Perhaps then, it is time to recognise that premenstrual sufferers are not merely the ‘docile lay populace’ that has been presumed, and that they have real stories of their own to tell.
Historically, the pain and suffering of premenstrual women has been dismissed, minimised and negated. It is little wonder then that some premenstrual sufferers have responded positively to the advent of medicalisation, even if this means that PMDD is now categorised as a psychiatric disorder and it leads to them being diagnosed with a mental health condition.124 Moreover, as Conrad has pointed out, there are in fact some positive implications to medicalisation. Interestingly, his description of the potential benefits manifestly resonates with the position of the premenstrual defendant:
Clearly there are some real humanitarian benefits to be gained by such a medical conceptualisation of deviant behaviour. There is less condemnation of the deviants (they have an illness, it is not their fault) and perhaps less social stigma. In some cases, even the medical treatment itself is more humanitarian social control, than the criminal justice system.125
In conclusion then, it is far too simplistic to assume that the medicalisation of the premenstrual disorders has been entirely driven and dominated by a patriarchal medical
121 Karen Ballard and Mary Ann Elston ‘Medicalisation: A Multi-Dimensional Concept’ (2005) 3 Social Theory & Health 228, 228. 122 See further Nikolas Rose, ‘Beyond Medicalisation’ (2007) 369 The Lancet 700; Peter Conrad, The Medicalization of Society (Johns Hopkins University Press 2007). 123 Els Bransen, ‘Has Menstruation Been Medicalised? Or Will It Never Happen...’ (1992) 14 Sociology of Health and Illness 98. 124 For a feminist account of how medical knowledge can benefit women, see Laura Purdy, ‘Medicalization, Medical Necessity, and Feminist Medicine’ (2001) 15 Bioethics 248, 257. 125 Conrad (n 104). Also, Erik Parens, ‘On Good and Bad Forms of Medicalization’ (2013) 27 Bioethics 28. 90
profession. Undoubtedly though, in the context of the premenstrual defendant’s story, the medicine and the law are inextricably linked together. Therefore, rather than seeking to criticise the concept of medicalisation, perhaps it is better to view the scientific advancements described above, as potentially offering a ‘humanitarian’ solution to the issue of a premenstrual defendant’s criminal responsibility. Bearing this in mind then, an important question for later chapters might be, how best to incorporate this medicalised approach into the premenstrual defendant’s story, for the purposes of reassessing her criminal responsibility and re-writing the current ending to her legal narrative.
ii. The stigmatising label
Undeniably, the concept of stigma is a distinctive feature of much of the discussion that circumscribes the sufferer of a premenstrual disorder. This is a woman who is shrouded in stigma, primarily because of the premenstrual label.126 Within the context of the out- of-court stories that are told about her, she is often characterised as ‘different’, ‘other’ and ‘set apart’ from society. The notions of taboo, secrecy and shame that circumvent her menstrual cycle, can thus lead to further social prejudice and discrimination, thereby perpetuating the labels and stereotypes that determine her character – which is then judged accordingly in court.127 All these conceptualisations of stigma can have a significant material impact on the premenstrual defendant. First, as a premenstrual woman she is prone to being labelled according to the longstanding socio-cultural beliefs, or doxa, that accompany that notion.128 Then, as a PMDD sufferer, she risks the additional stigmatising consequences that might follow from being diagnosed with a mental health disorder.129 In addition, the stigma that attaches to both these issues is directly related to her gender difference, which can further intensify the discriminatory process.130 Thus, being a woman with mental ill health that is caused by a menstrual disorder can put an individual
126 Ruth Macklin, ‘The Premenstrual Syndrome (PMS) Label: Benefit or Burden?’ in Ginsburg and Carter (n 48). 127 On the ‘labelling’ of women within the criminal justice system, see Siobhan Weare, ‘“The Mad”, “The Bad”, “The Victim”: Gendered Constructions of Women Who Kill within the Criminal Justice System’ (2013) 2 Laws 337. 128 Becky L Jacobs, ‘PMS HAHAcronym: Perpetuating Male Superiority’ (2004) 14 Texas Journal of Women and the Law 1. 129 Patrick W Corrigan and Amy C Watson, ‘Understanding the Impact of Stigma on People with Mental Illness.’ (2002) 1 World Psychiatry: Official Journal of the World Psychiatric Association (WPA) 16. 130 Levent Küey, ‘Stigma, Women and Mental Health’ in D Cohen (ed), Oxford Textbook of Women and Mental Health (OUP 2010). 91
under multiple burdens of potential stigmatisation.131 This is what the premenstrual sufferer who has committed a criminal act must face before she even enters the courtroom. How much more so for the premenstrual defendant who, without an adequate legal defence, is found guilty, labelled a criminal, and receives a stigmatising criminal record as a result?132
Stigma as a contemporary subject of study is multi-disciplinary in scope and deserves significant theoretical attention and volumes of writing.133 In this section, I intend only to introduce the concept and provide a brief overview of its relevant features. However, stigma should be assumed to be a key narrative thread within my story of the premenstrual defendant – even if the options for overcoming the stigma which she faces are ultimately quite limited. Conceptually, stigma has a long history. The term derives originally from the ancient Greek practice of marking or branding slaves and criminals, so that other members of society could identify and avoid associating with those individuals.134 Today stigma is an almost ubiquitous, everyday phenomenon, yet in many respects it is still an ‘elusive and perplexing’ concept.135
Erving Goffman is generally regarded as the most prominent stigma theorist of the modern age.136 According to his seminal work from 1963, stigma is a micro-social process, whereby an individual, with an attribute that is perceived as deeply discrediting by the other members of their society, is rejected because of that attribute.137 Goffman also categorised stigma into three types. The first of these relates to ‘abominations of the body’, such as deformities, physical abnormalities and debilitating conditions, with the premenstrual disorders possibly falling into this category. The second is linked to ‘tribal’ identities or social markers that are associated with marginalised groups, including for example, gender. The last one refers to ‘blemishes of individual character’, with
131 John E Pachankis and others, ‘The Burden of Stigma on Health and Well-Being: A Taxonomy of Concealment, Course, Disruptiveness, Aesthetics, Origin, and Peril Across 93 Stigmas.’ (2018) 44 Personality & Social Psychology Bulletin 451. 132 Megan Denver, Justin T Pickett, and Shawn D Bushway, ‘The Language of Stigmatization and the Mark of Violence: Experimental Evidence on the Social Construction and Use of Criminal Record Stigma’ (2017) 55 Criminology 664. 133 For a more detailed history of the concept, see Imogen Tyler and Tom Slater, ‘Rethinking the Sociology of Stigma’ (2018) 66 The Sociological Review 721. 134 Erving Goffman, Stigma: Notes on the Management of Spoiled Identity (Simon and Schuster 1986) 1. 135 Stephen C Ainlay, Lerita M Coleman and Gaylene Becker, The Dilemma of Difference: A Multidisciplinary View of Stigma (Springer US 1986) 1. 136 Goffman (n 134). 137 Ibid 3. 92
criminality perhaps being a clear example of this type.138 Furthermore, stigma can attach to those individuals who are discredited by the fact that their stigmatising feature is clearly known or visible; and equally it can apply to those who are discreditable, where the reason for a person’s stigmatised status is unknown and thus is concealable.139 As such, stigma is a complex inter-relational product, where both groups and individuals are labelled by society in a particular way. Thus, certain stereotypes are given power,140 and a person’s actual and virtual identity becomes polluted by the stereotypes that have been attributed to them. The labels that correspond to these stereotypes then become the dominant mode of knowledge and ‘truth’ in respect of that person’s identity.141 Furthermore, regardless of the type of stigma, Goffman asserts that each carries the same sociological feature, in that, ‘an individual who might have been received easily in ordinary social intercourse possesses a trait that can obtrude itself upon attention and turn those of us whom they meet away . . . for they possess a stigma, or an undesired differentness from what . . . was anticipated’.142 In the context of the premenstrual defendant then, the corresponding attributes, stereotypes, labels and stigma would be those that pertain to her status as a ‘premenstrual’ ‘woman’, plus those descriptions of her as ‘mentally ill’ and ‘criminally deviant’.
Later theorists have sought to elaborate on Goffman’s initial hypothesis, as a response to the now voluminous literature on the processes of stigmatisation, and in order to reassess the conceptualisation of stigma itself. Link and Phelan, for example, describe stigma as a convergence of a series of interrelated components.143 The first of these refers to the fact that people tend to distinguish and label human differences. The second is that ‘dominant cultural beliefs link labelled persons to undesirable characteristics – to negative stereotypes’.144 The third, that labelled persons are categorised so as to achieve a distinction that Link and Phelan describe as a ‘degree of separation between “us” and “them”’.145 And the fourth component is that labelled persons experience status loss and discrimination that leads to unequal outcomes for them in society. This characterisation of stigma has become known as ‘public-stigma’ or ‘perceived-stigma’ and, as Corrigan
138 Goffman (n 134) 4. 139 Ibid 41-42. 140 Ibid 3. 141 Ibid 15-16. 142 Ibid 5. 143 Bruce G Link and Jo C Phelan, ‘Conceptualizing Stigma’ (2001) 27 Annual Review of Sociology 363. 144 Ibid 368. 145 Ibid 370. 93
and Walton explain, it tends to refer to ‘the negative reactions towards individuals as displayed by the general population’.146 As with Goffman’s description above, there is a discernible correlation between these revised conceptions of the components of stigma, and the marginalised position of the premenstrual defendant in terms of her various defining features.
Furthermore, there is potentially another complicating element in respect of the premenstrual defendant’s story of stigma. For research has shown that the negative impact of what is known as ‘self-stigma’ can be just as harmful as the phenomenon of public stigma referred to above.147 Self-stigma concerns an individual’s propensity to internalise societal stereotypes by incorporating the negative reactions perpetuated by public-stigma, into their own awareness and concept of self.148 Also added to this is the prospect of ‘multiple-stigmatisation’ of the premenstrual defendant. This concept of multiple, or intersectional, stigma recognises that those individuals who belong to more than one socially disadvantaged group may have multiple identity statuses and may therefore experience numerous, multi-faceted stigmatising consequences.149 Given the various labels that can be used in reference to her status, this is clearly applicable in the case of the premenstrual defendant and as such, the impact of her stigmatisations is both manifold and cumulative, potentially causing her additional stress and in fact, further psychological problems.150 The rejection, condemnation and censure that she faces as a result of these ‘labels’ can further impact on the perception of her own self-identity and self-worth.151 Arguably, all of this can then contribute to – and perpetuate – a vicious cycle of self- stigma, ‘learned helplessness’ and what theorists have called a ‘why try’ attitude on the part of a stigmatised individual.152 Stigma then, is much more than just an interesting
146 Patrick W Corrigan and Jessica L Walton, ‘Stigma and Offenders with Mental Illness’ in Jane Wood and Theresa A Gannon (eds), Public Opinion and Criminal Justice: Context, Practice and Values (Willan Publishing 2009) 217. 147 Lindsay Sheehan, Katherine Nieweglowski and Patrick W Corrigan, ‘Structures and Types of Stigma’ in Wolfgang Gaebel, Wulg Rӧessler and Norman Sartorius (eds), The Stigma of Mental Illness - End of the Story? (Springer International Publishing 2016) 52. 148 Ibid. 149 Janet M Turan and others, ‘Challenges and Opportunities in Examining and Addressing Intersectional Stigma and Health’ (2019) 17 BMC Medicine 7. 150 Research shows that, ‘compared to the non-stigmatized, members of stigmatized groups are at a greater risk for mental and physical health problems’, Dzmitry Krupchanka and Graham Thornicroft, ‘Discrimination and Stigma’ in Gaebel, Rӧessler and Sartorius (n 147) 129. 151 Bruce G Link and others, ‘A Modified Labeling Theory Approach to Mental Disorders: An Empirical Assessment’ (1989) 54 American Sociological Review 400. 152 ‘Learned helplessness’ can occur when individuals feel they have no control over their lives and so resign themselves to accepting their situation: Steven F Maier and Martin E Seligman, ‘Learned helplessness: theory and evidence’ (1976) 105(1) Journal of Experimental Psychology. This can lead to 94
subject for scholarly study. Potentially, it can have a far-reaching and lasting impact on an individual’s life.
In fact, the one clear commonality of the various conceptual theories on stigma as a social process is that, whatever form it takes, stigma is harmful and can have significant negative repercussions. This then is what Goffman refers to when he speaks of a ‘spoiled identity’.153 But as Goffman also suggests, those individuals in society whose labels mark them out as different, do find ways to manage information about their ‘spoiled identity’ or to put it another way, to re-appropriate their agency.154 Goffman explains that this can involve a precarious process of social editing, or information control that enables the stigmatised individual to pass as ‘normal’.155 In essence, this is an attempt on the part of the labelled and stereotyped person to re-construct their own narrative in order to avoid further stigma. Applying this analysis to the premenstrual sufferer then, it is apparent that there are a number of positive strategies or coping mechanisms that she might employ to manage her ‘spoiled identity’, in relation to the social stigma that she encounters as a result of her menstrual cycle,156 or the diagnosis of her premenstrual disorder,157 or her mental health status.158 Conceivably a premenstrual sufferer might use a strategy of avoidance, or try to deflect whichever label it is that she feels uncomfortable about being attributed with. Alternatively, she might subsume that label into her own personal narrative, in order to normalise its application and effect. Or she might even go so far as to embrace the stereotype and utilise it, for example, as part of a campaign of menstrual activism or mental health advocacy. Whichever approach she chooses, each one of these is a valid means of addressing the stigma and the ‘stock stories’ that might relate to a particular label, and in the process, changing her own narrative.
What is less obvious though is how a premenstrual defendant might go about challenging and resisting the potential stigma that ensues from a criminal conviction. Given the
the ‘why try effect’, where one’s confidence on oneself is undermined to the point of apathy, Sheehan, Nieweglowski and Corrigan (n 147) 51. 153 Goffman (n 134). 154 Ibid 12. 155 Ibid 41-42. 156 Ingrid Johnston-Robledo and Joan C Chrisler, ‘The Menstrual Mark: Menstruation as Social Stigma’ (2013) 68 Sex Roles 9, 14. 157 Diane E Taub, Penelope A MCLorg and Patricia L Fanflik, ‘Stigma Management Strategies among Women with Physical Disabilities: Contrasting Approaches of Downplaying or Claiming a Disability Status’ (2004) 25 Deviant Behavior 169. 158 Rob Whitley and Rosalyn Denise Campbell, ‘Stigma, Agency and Recovery amongst People with Severe Mental Illness’ (2014) 107 Social Science & Medicine 1. 95
potency of the stigmatising effect of a criminal record, then the options set out above may not be available, or indeed be suitable. Moreover, the stigma that is associated with a formal criminal conviction is a far remove from the social stigma of the premenstrual stereotype, or the mental disorder label. This then requires a different tactic. Helpfully, Link and Phelan signal a potential strategy that might in fact inform my analysis going forward, and to answer the question, ‘If stigma is a persistent predicament, how can it be changed?’.159 First, as they point out, the stigmatisation process is ‘entirely dependent on social, economic and political power [and] it takes power to stigmatize [sic]’.160 In this regard therefore, it would seem that the power-dynamic involved in the attribution of the label of ‘criminally responsible’ is an important factor to be taken into account.
They also suggest two principles for considering how to radically change the stigma that attaches to certain individuals. The first thing to bear in mind is that any approach must be multi-faceted and multi-level. The second is that: ‘one should choose interventions that either produce fundamental changes in attitudes or beliefs or change the power relations that underlie the ability of dominant groups to act on their attitudes and beliefs’.161 By way of explanation, they say that ‘to change’ stigma, it is necessary to change the established prevailing social circumstances, so as to limit the power of ‘the powerful’ to be able to make their stigmatising precepts the dominant authoritative force. More importantly, they also say that ‘an approach to change must ultimately address the fundamental cause of the stigma’.162 Therefore, on my reading of Link and Phelan’s analysis, and my application of their proposition to the legal status of the premenstrual defendant, this suggests that in order to change the stigmatising effect of her criminal conviction, one would need to challenge the ideological and institutional framework which itself creates and supports the stigma that results from being labelled a criminal. Regrettably, this is the extent of Link and Phelan’s analysis on this point, and there is no further guidance as to the exact means by which to undertake such a challenge. That said though, their detailed analysis of the concept, and their exhortation to ‘change the power relations’ regarding stigma does provide something of a signpost for the next stage of my storytelling project. Bearing in mind the discussion above then, the concept of stigma has a vital role to play in the socio-medical narrative of the premenstrual defendant set out so far. Hence, one question for this thesis would seem to be – if stigma is such a persistent
159 Link and Phelan (n 143) 380. 160 Ibid 375. 161 Ibid 381. 162 Ibid. 96
predicament, then how can this part of the premenstrual defendant’s legal story be changed?
4. How to ‘treat’ the premenstrual defendant?
I bring this chapter to a close with the question above. This inquiry is not posed in the literal sense though, of how to medically ‘treat’ the premenstrual defendant. Rather, this question refers to how she should be ‘treated’ within the framework of the current criminal justice system – and how her condition of PMDD should be ‘treated’ in relation to its potential operation as an excusatory factor within the criminal law’s current criminal responsibility-attribution practices. Here, I set out some preliminary thoughts as to what the scientific developments, and the related socio-theoretic discussion of medicalisation and stigmatisation referred to above, might mean in relation to the legal status of the premenstrual defendant.
I began this chapter with a synopsis of the most recent clinical advancement in relation to the premenstrual disorders. That is, the discovery of ‘the PMDD gene complex’.163 Assessed in tandem with the other scientific and medical discussion presented here, this new facet of empirical knowledge supports – to some extent – the socio-scientific acceptance of a clinical entity known as premenstrual dysphoric disorder or PMDD. Evidently of course, such a discovery does not presuppose an empirical link between premenstrual dysphoric disorder and criminal activity in sufferers. Neither does it establish that PMDD in fact causes criminality in women. In fact – in real terms – the discovery of ‘the PMDD gene complex’ only adds another layer to the existing socio- medical discourse. As yet, there is still no fixed aetiology, diagnostic test or potential cure for PMDD. However, given that premenstrual dysphoric disorder has now been acknowledged as a recognised medical condition in both the DSM-5 and the ICD-11 then arguably, it would be possible for expert evidence of PMDD to be validly presented in criminal proceedings that involve an affected individual. The main claim of this chapter therefore is that, as a recognised medical condition, PMDD has the potential to be utilised as an excusatory factor in applicable and appropriate cases which involve a premenstrual
163 Dubey and others (n 2). 97
defendant. In a later chapter, I discuss in more detail how this factor might be applied in relation to my proposal for a new partial defence for the premenstrual defendant.
In terms of my additional concluding thoughts on the discussion in this chapter, these relate to the social aspects of the debate about PMDD, as well its scientific status. Both are significant factors within the context of the wider debate, and both can contribute to an enhanced understanding of the socio-legal status of the premenstrual defendant overall. In this respect then, here I make the following points. First, there clearly exists a historicised aspect to the narrative regarding the premenstrual disorders, the thread of which can be traced back over many centuries. Not only does this add an extra layer of detail to the premenstrual defendant’s legal story, but it also demonstrates that the premenstrual disorders may not be the modern social constructions that some critics believe them to be. Assessing the overall context of this debate then, even if the science remains somewhat uncertain, PMDD sufferers might say that the corollary benefit of the recent discovery of the PMDD gene complex is that it serves to legitimate a medical problem that women have been complaining of for centuries.164
Another point to note is the discernible symbiotic link between the medicine and the law in this area. Fundamentally, one could argue that medicine was in fact the driving force behind the legal developments in this area, as without Dalton’s clinical input there might have been no resulting legal cases involving a premenstrual defendant. This links up also with the discussion about the further medicalisation of the premenstrual disorders in recent years. Potentially, this also goes to support Conrad’s proposition that there can be ‘real humanitarian benefits’ to a medical conceptualisation of deviant behaviour.165 But that said, this also raises another important aspect to the point about medicalisation – the potential concern about the power-dynamics at play here, and the privileging of medical discourse within the confines of the courtroom. As Bell and Fox,166 and Hilary Allen,167 point out, often when a woman seeks to employ a medical diagnosis as an excusatory factor, it tends to result in a heavily gendered plea that emphasises a female defendant’s
164 Stolberg (n 21). 165 Conrad (n 104) 18. 166 Christine Bell and Marie Fox, ‘Telling Stories of Women Who Kill’ (1996) 5 Social & Legal Studies 471, 480-81. 167 Hilary Allen, ‘Rendering Them Harmless: The Professional Portrayal of Women Charged with Serious Violent Crimes’ in Pat Carlen and Anne Worrall (eds), Gender, Crime and Criminal Justice (Open University Press 1987). 98
‘victimhood’ and undermines her status as an agent of the criminal law.168 As such, her legal story is heard, but it is still not her own.169 Thus, whilst there may be potential benefits to the increasingly medicalised discourse around the premenstrual disorders, the medico-legal power-dynamic at play here might also have a potentially negative impact upon the issue of the premenstrual defendant’s perceived agency within the law – and the perceived status of women within the wider society. This point about medicalisation then, continues to be a very fine balancing act.
The final point of note that I take from the analysis in this chapter, is the extent to which the social context of the premenstrual defendant has infiltrated her legal story. This relates back to the proposition that a defendant’s legal narrative is influenced by the longstanding cultural beliefs, or doxa, that attach to her status as a member of society. Medical recognition of the premenstrual disorders may not have eliminated the cultural and political complexities which circumscribe the ontological debates, discursive concepts and ‘stock stories’ that surround the premenstrual disorders. At present, the science has not entirely dispelled the stereotypes and stigma that continue to permeate the discourse surrounding the premenstrual disorders. In fact, in some respects, medicalisation of these conditions may also be seen as having contributed towards the stereotypical characterisation of some women as ‘mad’, ‘bad’ or ‘sad’. Whichever way these stereotypes come about, they can serve to undermine how the premenstrual defendant’s character is perceived by others, including the other courtroom actors. Arguably then, it is important to take these contextualising features into account when it comes to the issue of the premenstrual defendant’s criminal responsibility. Thus, in the chapter that follows, I move on to consider the concept of criminal responsibility – in particular, the stories that we tell about this doctrinal ‘master narrative’ and the ways in which the stories and stereotypes of its actors are reflected within it.
168 Discussed in chapter one, at pp 55-56. 169 Bell and Fox (n 166) 481. 99
CHAPTER THREE
CONCEPTUALISING THE PREMENSTRUAL DEFENDANT’S CRIMINAL RESPONSIBILITY
Clearly, ideas such as responsibility have a history: what we need to understand is the relevance of that history for the conceptual as well as the practical structure of responsibility.1
1. In search of the premenstrual defendant’s criminal responsibility
In previous chapters, the debate has paid close attention to the complex nature of the premenstrual defendant’s legal status as set within the wider medical and social contexts. Here, I turn my attention to the question of her criminal responsibility as it relates more specifically to the prevailing doctrines of the criminal law. Generally speaking, ‘the question of responsibility – indeed the question of individual responsibility – stands as the question of normative criminal law theory’.2 Thus, the conditions of criminal responsibility tend to be the primary concern of modern theoretical discourse, and so the ‘interest is in who can be held to account for criminal wrongdoing and how and why’.3 Within the framework of the feminist legal narrative that I employ in this thesis, the concept of criminal responsibility also represents ‘the master narrative’ in which the premenstrual defendant’s story as a subject of the criminal law necessarily must be told.4 Therefore, going ‘in search of’5 her individual legal story of responsibility axiomatically entails chronicling in part the ‘story’ of criminal responsibility itself. This then is what I set out to do in this chapter: to tell a ‘story’ about the concept of criminal responsibility.
1 Nicola Lacey, In Search of Criminal Responsibility: Ideas, Interests and Institutions (OUP 2016) 8. 2 (emphasis original) Nicola Lacey, ‘In Search of the Responsible Subject: History, Philosophy and Social Sciences in Criminal Law Theory’ (2001) 64 The Modern Law Review 350, 350. 3 Ngaire Naffine, Criminal Law and the Man Problem (Hart Publishing 2019) 151. 4 Regina Graycar, ‘Telling Tales: Legal Stories about Violence against Women’ (1996) 7 Australian Feminist Law Journal 296. Discussed in more detail in chapter one, at pp 57-59. 5 Respectfully borrowing the phrase from Lacey (n 1). 100
First though, I should describe the way in which I shall tell this story, and how I intend to deconstruct the conceptual master narrative.6 Predominantly, the critical analysis that I undertake in this chapter is predicated on a Laceyan hypothesis of criminal responsibility – one that conceives of responsibility as an idea which is impossible to separate from the social practices of criminalisation.7 And one which acknowledges also, that:
in terms of method, legal scholarship is ideally historical and comparative in outlook, and located within a social, political, and economic framework, so as to build a broad interpretation of the developing relationship between concepts such as responsibility and the factors that explain their shifting influence over time.8
Thus, Lacey’s historicised and contextualised account of criminal responsibility is fundamental to my analysis in this chapter. This is the case also for her conceptual hypothesis of the various ideas of criminal responsibility, their relationship to the institutions which produce and promulgate those ideas, and the way in which they are shaped by the predominant socio-political interests of civil society.9 All these elements provide the contextualising and formative framework for my discussion of the premenstrual defendant’s criminal responsibility. The introductory note set out below explains in brief the reason why I consider Lacey’s account to be so important to the story of the premenstrual defendant in particular.
Principally within legal scholarship, it is widely accepted that the doctrines of English criminal law derive from traditional normative notions which relate to a person’s ‘capacity’, or their abilities of understanding, awareness and self-control. Thus, a person can only rightly be held to be criminally responsible if they possess certain volitional and cognitive capacities. Whilst Lacey’s account of criminal responsibility acknowledges that capacity is still a ‘core’ legitimating element within criminal responsibility-attribution practices,10 her hypothesis differs from other conventional conceptualisations.11 Primarily, this comes down to her argument that fundamentally, ‘character’ still plays a part in modern-day criminal responsibility-attribution practices. This is character, in the
6 As per the feminist legal narrative approach in Graycar (n 4). 7 Lacey (n 1). Also, Nicola Lacey, Women, Crime, and Character: From Moll Flanders to Tess of the d’Urbervilles (OUP 2008). 8 Lacey (n 1) 3. 9 Ibid, chapters 2, 3 and 4. 10 Ibid 186. 11 In terms of its historical focus, it mirrors other recent scholarly contributions: Lindsay Farmer, Making the Modern Criminal Law: Criminalization and Civil Order (OUP 2016). 101
sense of criminal responsibility-attribution based on an offender’s reputation or their assumed disposition – a practice that most lawyers would assume to have been consigned to the past. On Lacey’s account though, character is still present within contemporary English criminal responsibility-attribution practices, 12 and it is this aspect of Lacey’s hypothesis in particular that could prove a significant point for my analysis in this thesis. For, if this is a correct interpretation of the way in which character continues to influence modern day criminal responsibility, then arguably this might impact on my attempts to re-conceptualise the premenstrual defendant’s criminal liability. Therefore, I need to better understand how Lacey considers that character can influence criminal responsibility.13 Broadly speaking then, my aims in this chapter are: to establish the background to Lacey’s hypothesis, to evaluate the extent to which it is a true reflection of the historical development of the doctrine of criminal responsibility, and to assess the potential implications of this account of character, for the premenstrual defendant.
The content and format of this chapter is set out as follows. Akin to Lacey, my overarching objective here is to ‘historicise the structure as well as the content of criminal law within a broad socio-theoretic framework’.14 Therefore, the first step is to sketch an outline of the historical development of traditional criminal responsibility doctrine. This then leads into a discussion of the prevailing theory of capacity as the ‘core’ normative foundation of the criminal law, and the paradigm of responsibility that is now most closely associated with the work of HLA Hart.15 Accepting that capacity is still central to current responsibility-attribution practices, I go on to expand upon and develop this core notion of capacity by reference to Lacey’s own account of criminal responsibility. Thus, I follow this part of the analysis with an explanation of the importance of history to our understanding of criminal responsibility overall – in the light of Lacey’s assertion that, ‘we cannot understand what responsibility is, or has been, unless we ask what it has been ‘for’ at different times and in different places’.16 Then after this, and still continuing with the Laceyan leitmotif, I discuss her re-conceptualised tripartite framework of criminal
12 Discussed in more detail at pp 124-29. 13 This links directly to my discussion in chapter four about the ‘characterisation’ of female defendants within the criminal law. 14 Lacey (n 2) 351. Also, Nicola Lacey, ‘Contingency and Criminalisation’ in Ian Loveland (ed), The Frontiers of Criminality (Sweet and Maxwell 1995). 15 HLA Hart, Punishment and Responsibility: Essays in the Philosophy of Law (OUP 2008). Chapters 1, 2 and 8 are of most relevance to the analysis in this chapter. 16 Lacey (n 1) 2. 102
responsibility – as a legitimating and coordinating socio-theoretic construct. The conceptual contours of which, she argues, have been shaped by the ideas, interests and institutions of its social, political and cultural environment.17 This then leads into Lacey’s overarching hypothesis of the ‘shifting patterns of responsibility-attribution in criminal law over time’.18 The discussion of these various components to Lacey’s account of criminal responsibility is undertaken in a bid ultimately to work her hypothesis into my analysis of the story of the premenstrual defendant. Thus, in the final section I assess the potential meaning of Lacey’s refined account of criminal responsibility for the premenstrual defendant, before drawing some conclusions on how the ideas of responsibility set out here will help to direct my analysis in the following chapters.
2. The doctrine of criminal responsibility: historically conceived
The primary focus for criminal law scholarship is on the conditions of criminal responsibility: the ‘who’, the ‘how’ and the ‘why’ of the criminal law.19 The fundamental question in the ‘story’ of criminal responsibility therefore is, ‘who is responsible under criminal law?’, or indeed, the normatively grounded inquiry of ‘who should be held responsible under criminal law?’20 Within what is an extensive body of work in the legal- philosophical scholarly tradition,21 this question is generally posed in relation to ideas about the minimum conditions22 that must be met in order for an individual to be held criminally responsible, via a particular set of procedural requirements, and within the
17 Lacey (n 1). In particular, Chapters 2, 3 and 4. 18 Ibid 24. 19 For a general overview see James Edwards, ‘Theories of Criminal Law’ The Stanford Encyclopaedia of Philosophy (Fall 2018 Edition), Edward N Zalta (ed),
existing operative practices of the substantive criminal law.23 Brought together as a consolidated whole, these historically entrenched conditions, procedures and practices provide the orthodox framework of the doctrine of criminal responsibility.
In this section, I trace an outline of the historical development of the relevant legal- philosophical studies of criminal responsibility, to assess how ‘responsibility’ has been conceptualised over the centuries and how we have reached the modern orthodox position set out above. For, although theorists might agree that the ‘central idea of holding an individual responsible’ is largely a ‘historically stable’ precept,24 this does not entail that theories about the form and content of criminal responsibility have been historically consistent.25 I demonstrate this point below, by briefly scanning the intellectual terrain of previous theories.26
To understand the ‘story’ of criminal responsibility, one first needs to appreciate the significant influence of the legal-philosophical scholarly approach to the study of responsibility. Traditionally, criminal law scholarship has been engaged in the search for a set of profound and immutable legal principles, which are themselves indexed to moral norms that underpin the form and content of the law, and thereby lend it substantive and operative legitimacy. Drawing upon broader philosophical theory, some criminal law scholars have asserted that there are discrete, definable harms or wrongs, which exist outside of the law, and possibly also beyond society itself.27 Having their origins in the ‘intellectual ancestors’ of ‘Aristotle’s ethics, and the debates about individual conscience and human freedom to be found in the Christian theological tradition’,28 these moral- evaluative canonical tenets of responsibility have been expressed previously in relation to a number of legal-philosophical theories. Hence, the concept of responsibility has been
23 Critically analysed in Nicola Lacey, ‘Institutionalising Responsibility: Implications for Jurisprudence’ (2013) 4 Jurisprudence 1. 24 Tadros (n 21) 5-6. 25 As evidenced by the vast array of scholarly work on criminal responsibility that now exists. For an authoritative list of exemplar texts, and a categorisation of their relevant genres, see Lacey (n 1) 10-11. 26 Space constraints prevent a more comprehensive analysis. 27 Patrick Devlin, The Enforcement of Morals (OUP 1965); Joel Feinberg, The Moral Limits of Criminal Law: Harm to Others; Offense to Others; Harm to Self; Harmless Wrongdoing (OUP 1984-88). 28 Lacey (n 1) 5. Also, Nicola Lacey, ‘Historicising Criminalisation: Conceptual and Empirical Issues’ (2009) 72 Modern Law Review 936; Chloë Kennedy, ‘Immanence and Transcendence: History’s Roles in Normative Legal Theory’ (2017) 8 Jurisprudence 557. 104
linked variously to, either a Benthamite form of utilitarianism;29 or more frequently the utilitarianism represented by J.S. Mill’s oft-cited harm principle;30 or alternatively, in relation to the legal moralism espoused by James Fitzjames Stephen.31 In addition, these theories about the nature of the criminal law are themselves associated with what ‘could be called “The Story of Enlightenment” or perhaps “of Modernity”’,32 a theory which acknowledges that conceptions of human agency and individual responsibility can be traced back to the work of philosophers such as Immanuel Kant, and eighteenth-century ideas about citizens as rational, autonomous and self-determining, moral beings.33
Taking their lead from this philosophical tradition within criminal legal discourse, some modern theorists have focused their attention on the search for a ‘grand theory’ within the criminal law:34 the master narrative to usurp and trump all other narratives, as it were. The type of grand theory that they ‘yearn’ for is one that ‘wants to make moral sense of what is perceived to be at the core of the criminal law, by endowing it with a unitary, normative foundation and a clear, principled structure’.35 Admittedly, within the modern criminal law there is some general agreement that responsibility is the ‘central concept in the process of seeing the criminal law as a unified and conceptually distinct body of rules’.36 Notwithstanding the influence of these grand theorists though, there is still some scholarly doubt as to whether the search for this theory of responsibility is a viable pursuit. Duff, for example, argues against a reliance on, or adherence to, a grand and unitary theory of responsibility, stating that, ‘those who offer large-scale, all-embracing theories of liability should realise that they cannot possibly be describing law as it really is, in its
29 JH Burns and HLA Hart (eds), The Collected Works of Jeremy Bentham: An Introduction to the Principles of Morals and Legislation (Clarendon Press 1996). 30 John Stuart Mill, On Liberty (1859) (Penguin 1974). 31 James Fitzjames Stephen, Liberty, Equality, Fraternity, RJ White (ed), (Cambridge University Press 1967). 32 Lacey (n 2) 357. Also, Nicola Lacey, ‘Responsibility and Modernity in Criminal Law’ (2001) 9 Journal of Political Philosophy 249. 33 T Hill and A Zweig, Groundwork for the Metaphysics of Morals (OUP 2003). Kant’s philosophy forms the premise for the proposition that human beings who possess and exercise agency are rational agents who can make reasoned choices about appropriate actions and behaviour. See further RA Duff, Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law (Basil Blackwell 1990). 34 RA Duff, ‘Theorizing Criminal Law: A 25th Anniversary Essay’ (2005) 25 Oxford Journal of Legal Studies 353, 355-59. 35 Louise Kennefick, ‘Towards a More Contextualised Approach to Blame Attribution: The Case of the Diminished Responsibility Offender’ (2013) 38 Australian Journal of Legal Philosophy 123, 126. 36 Farmer (n 11) 196, and chapter 7 generally. 105
“contingent historical complexity”’.37 In the same vein, Norrie has cautioned against a theory of criminal law that works at too great a level of abstraction, or assumes the creation of a universal and ubiquitous moral subject.38 Lacey too, shares comparable doubts and concerns about the appeal of an all-embracing, ahistorical grand theory. And, adopting a similar stance, I find myself in agreement when she says that, ‘My intellectual starting-point is, therefore, sceptical about the propriety of an a priori unitary approach to theorising criminal responsibility’.39
That said, it should be acknowledged that the moral philosophical tradition has had a profound and abiding influence on the theoretical framework of the criminal law. Indeed, as Duff describes, it is still the prevailing position of many theorists that:
The underlying assumption [here] is that criminal liability should, in principle be ascribed in accordance with moral responsibility. A defendant should be criminally liable only for conduct for which she can properly be held morally responsible or culpable; and the extent of her criminal liability (the seriousness of the offence for which she is convicted) should match the degree of her moral responsibility or culpability. That is why mens rea should be required for criminal liability, and why intention should be the most serious kind of criminal fault.40
Thus, ‘the dominant narrative’41 regarding the architecture of criminal responsibility is one that has tended to favour a linear development of the law, which itself is buttressed by reference to a foundational morality, and which emphasises also the rise to prominence of what is described as the ‘capacity’ paradigm of criminal responsibility-attribution practices.42 The conceptual framework for this paradigm is encapsulated – and understood by lawyers across the Anglosphere – within the familiar Latin maxim, actus non facit reum nisi mens sit rea. And, despite criticisms of the clarity and validity of the phrase
37 RA Duff, ‘Virtue, Vice, and Criminal Liability: Do We Want an Aristotelian Criminal Law?’ (2002) 6 Buffalo Criminal Law Review 147, 154. 38 Alan Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd edn, Cambridge University Press 2006) ch 2. 39 Lacey (n 2) 351. See also Nicola Lacey, ‘Contingency and Conceptualism: Reflections on an Encounter between Critique and Philosophical Analysis of Criminal Law’ in RA Duff (ed), Philosophy and the Criminal Law (Cambridge University Press 1998). 40 Duff (n 33) 103. 41 As it is referred to in Ely Aaronson, Criminal Responsibility and the Idea of Historical Progress 4(2) (2017) Critical Analysis of Law 191, published online
itself,43 this maxim has held firm for several centuries as a central feature of common law jurisprudence, academic legal discourse and judicial thinking.44
Deconstructing the form and content of this archaic maxim, it is generally understood to mean that, for a person to be held criminally responsible and liable to punishment, first it must be proven that they carried out the relevant actus reus, or the conduct element of the crime. Taking the common law offence of murder as an example, this means that they must have caused the death of another individual. In addition, their actions or conduct must also – in most cases, at least45 – be accompanied by the relevant mens rea, also known as the mental element, for that crime. For the offence of murder then, this would be satisfied by proof of the person’s intention to kill, or alternatively their intention to cause grievous bodily harm. However, even if these two elements are present and the conditions for criminal responsibility are established,46 there may still be a possible defence available to the defendant – for example insanity or automatism,47 or in certain cases the partial defences of diminished responsibility48 or loss of control.49 And, if found to be applicable on the facts of a particular case, then these defences would respectively remove or reduce criminal liability for the offence charged. These three components – the conduct, mental and potential defence elements – form the basis of what is known as the general part of the criminal law.50
However, not only does this tripartite formulation provide the grounding analytic structure for criminal liability, non-liability or partial liability – as the case may be for
43 Famously described by James Fitzjames Stephen as ‘not so much a maxim as a minim’, in James Fitzjames Stephen, A History of the Criminal Law of England (Macmillan 1883) vol II, 94. 44 See further Jeremy Horder, Ashworth’s Principles of Criminal Law (9th ed, OUP 2019) ch 5 and 6. 45 cf crimes of strict liability: Andrew Simester (ed), Appraising Strict Liability (OUP 2005). 46 Other principles relating to the conditions for liability must also be met. For example, the principles of correspondence and contemporaneity. See further Horder (n 44) ch 3. 47 At common law. 48 Coroners and Justice Act 2009, s 52, amending the Homicide Act 1957, s 2. 49 Coroners and Justice Act 2009, ss 54 and 55. Previously enshrined in the common law defence of provocation. 50 Drawing on Glanville Williams’ classic division of the criminal law into general principles (‘the general part’) and specific offences (‘the special part’) in Glanville Williams, Criminal Law: The General Part (Steven and Sons 1961). On ‘the general part’, see also Stephen Shute and AP Simester, Criminal Law Theory: Doctrines of the General Part (OUP 2002); and on ‘the special part’, see further RA Duff and Stuart P Green, Defining Crimes: Essays on the Special Part of the Criminal Law (OUP 2005). 107
individual defendants – but implicit within this archaic construction there is also ‘a strong normative thesis of the legitimacy of the criminal law’.51 As Lacey says:
The idea that criminal liability must include both conduct and responsibility or fault lies at the heart of the contemporary criminal law’s idea of itself as not just a system of state power and force, but a legitimate - even in some senses - a moral system.52
This then is the story that criminal responsibility tells about itself. And, whilst it is true to say that criminal liability requires both an actus reus and a corresponding mens rea, predominantly it is the mental element, rather than the conduct element, which tends to interest modern theorists the most. That is because the mental element is a fundamental factor in making people criminally responsible, or non-responsible for their actions.53 Thus, the principle of responsibility, and the conditions for criminal responsibility are strongly premised on what could be called a ‘theory of mind’,54 and this ‘theory of mind’ translates most apparently into what has now become known as the ‘capacity’ theory of criminal responsibility. Consequently, in modern legal discourse, ‘we are familiar with the idea that criminal responsibility is founded on capacity’,55 and also that, ‘the values enshrined in the legal doctrines of individual capacity responsibility . . . are the jewel in the crown of the ‘general part’ of the criminal law’.56
3. Hart’s capacity paradigm
HLA Hart is credited with providing the most authoritative expression of what modern legal scholars understand and accept as the capacity theory of criminal responsibility. In his influential work Punishment and Responsibility,57 Hart articulates this capacity theory in terms of his dictum that some form of ‘moral license’ is required in order for society
51 Lacey (n 2) 353. 52 Ibid. 53 For a detailed history of the mens rea requirement, see Martin R Gardner, ‘The Mens Rea Enigma: Observations on the Role of Motive in the Criminal Law Past and Present’ (1993) 1993 Utah Law Review 635. 54 This ‘theory of mind’ is based in folk-psychology, a ‘common-sense’ conceptual-explanatory framework that privileges a causal relationship between mental states and human behaviour: Martin Davies and Tony Stone (eds), Folk Psychology: The Theory of Mind Debate (Blackwell 1995). 55 That is, ‘responsibility as founded in the engagement of human capacity’, Lacey (n 1) 27. 56 Lacey (n 1) 175. 57 Hart (n 15). 108
to punish people, and that ‘unless a man has the capacity and a fair opportunity or chance to adjust his behaviour to the law its penalties ought not to be applied to him’.58 In essence, his theory incorporates both capacities of cognition and understanding,59 and capacities of volition or will.60 The proposition which arises from the former asserts that it is only fair to punish someone who understands what they are doing, and with regard to the latter, that it is only justifiable to punish a person who has the capacity, or a fair opportunity, to choose to act otherwise than they did in the circumstances.
In turn, this theory of capacity also presupposes a certain type of ‘modern self’,61 as the agent of a criminal act and the subject of the criminal law. This modern self is a rational person, endowed with free will and the autonomy to think and reason, as well as to voluntarily choose how to act. Inherent within these ideas about the rational agent of the criminal law, there is ‘an assumed sovereignty over the self’,62 and implicit also is the notion that – based on that person’s capacity – a court can inspect, assess and make pronouncements on a rational agent’s decision to break the law in any given set of circumstances. This formulation of the capacity theory then, makes possible the legal determination of a person’s mens rea, and this is especially so in cases where the person has a subjective intention to commit a particular crime.63 The notion of subjectivism has itself had a profound effect within the criminal law, not only because it is considered to be the classic articulation of the mental element of a crime, but also because it is axiomatic of criminal fault, and reflects too the idea that ‘harmful wrongs or wrongful harms consist centrally in culpable conduct’.64 It follows then that crimes which are committed with a subjective mens rea tend to attract the greatest degree of moral blame and censure. Thus, the central case of capacity-based responsibility ensures that the criminal law fits within the model of a liberal socio-political system that is concerned with individual free will
58 Hart (n 15) 181. 59 According to Lacey’s articulation of Hart’s concept, this is ‘capacity as choice, which generally appears within subjective mens rea or fault requirements’, e.g. intention, foresight or knowledge, Lacey (n 1) 28. 60 According to Lacey, this is ‘capacity as fair opportunity, which appears in a broader conception of mens rea that includes negligence and ‘objective’ recklessness’, Lacey (n 1) 28. 61 See also Lacey (n 1) 49-51. 62 Naffine (n 3) 152. 63 Taking the offence of murder, as referred to above at p 107, this would be the subjective intention to kill or cause grievous bodily harm. On this point see also, DPP v Morgan (1976) AC 182, reversed by the Sexual Offences Act 2003; B v DPP (1998) 4 All ER 265. The subjective requirement of intention is now enshrined in statute according to the Criminal Justice Act 1967, s. 8. 64 Farmer (n 11) 164. 109
and autonomy. And so, going back to Hart’s articulation of the relevant concepts, and bringing together his ideas about responsibility and capacity, then arguably:
What is crucial is that those whom we punish should have had, when they acted, the normal capacities, physical and mental, for doing what the law requires and abstaining from what it forbids, and a fair opportunity to exercise those capacities. Where these capacities and opportunities are absent . . . the moral protest is that it’s morally wrong to punish because ‘he could not have helped it’ or ‘he could not have done otherwise’ or ‘he had no real choice.65
Fundamentally, Hart considered that the criminal law should be thought of as ‘a choosing system, in which individuals can find out . . . the costs they have to pay if they act in certain ways’.66 Moreover, he said, a condition of just punishment is that, ‘the agent “could have helped” doing what he did’ and that, ‘no one should be punished who could not help doing what he did’.67 Reading across the whole of his theory on responsibility then, one can see that it is firmly grounded in a set of cognitive and volitional capacities, but that it also sits alongside other ideas, such as an associated theory of the mens rea principle in the criminal law, a justification for punishment in certain circumstances, and a corresponding theory of excuses.68 Speaking about Hart’s legacy, Lacey points out, ‘It is hardly an exaggeration to say that it forms the starting point or a principal object of criticism for virtually all subsequent work in the field’, and that ‘within the confines of the presumption of a requirement of mens rea, his account of responsibility provides . . . a remarkably accurate fit with certain key aspects of late-twentieth century criminal law doctrine in both Britain and the USA’.69
Clearly then, I need to pay heed to Hart’s analysis of responsibility, and to consider the influence which his normative capacity-based approach has had on criminal responsibility-attribution practices. That said, despite its perceived importance, Hart’s theorising has not been immune to subsequent critique.70 Hart himself wrote a Postscript
65 Hart (n 15) 152 66 Ibid 44 (emphasis original). 67 Ibid 39. 68 According to Hart, legal excuses rest on three main grounds: first, they must maximise individual liberty; second, they need to reflect the requirement of justice for individuals and be limited in their effect; and third, they should reflect important distinctions which pervade the whole of our social life. Seee Hart (n 15) ch 2 generally. 69 Lacey (n 1) 177. 70 Gardner addresses some of the issues in his Introduction to Hart (n 15) xiii. Also, Lacey (n 1) 177; Tadros (n 21) 54-70. 110
to go alongside the essays contained in Punishment and Responsibility, the purpose of which was to address some of the criticisms levelled at him, and to provide a ‘more comprehensive account of the complexities and ambiguities’ regarding the terminology of responsibility.71 I include here a reference to his supplementary consideration of these ‘complexities’, partly because – as set out below – it demonstrates that Hart himself considered the concept of responsibility to be capable of ‘deconstruction’ into different classificatory headings.72 Partly also, because it provides support for the fact that in reality, responsibility is not merely one, single, indivisible concept, but more realistically, a heterogeneous phenomenon. In addition, I include Hart’s idiosyncratic presentation of these different ideas about responsibility as something of an interesting aside, and one that sits well with my focus on legal narrative in this thesis.73 Therefore, here is Hart’s parable of the ‘simple story of a drunken sea captain who lost his ship at sea’:
As captain of the ship, X was responsible for the safety of his passengers and crew. But on his last voyage he got drunk every night and was responsible for the loss of the ship with all aboard. It was rumoured that he was insane, but the doctors considered that he was responsible for his actions. Throughout the voyage he behaved quite irresponsibly, and various incidents in his career showed that he was not a responsible person. He always maintained the exceptional winter storms were responsible for the loss of the ship, but in the legal proceedings brought against him he was found criminally responsible for his negligent conduct, and in separate civil proceedings he was held legally responsible for the loss of life and property. He is still alive and he is morally responsible for the deaths of many women and children.74
Even within his own theorising, Hart came to the conclusion that there exists a ‘welter of distinguishable senses of the word “responsibility”’.75 More recently too, Lacey has argued that there are ‘multiple and philosophically variegated’76 conceptions of responsibility at work within the criminal law.77 Therefore, whilst capacity-based
71 Hart (n 15) 210. 72 Which he identifies as ‘Role-Responsibility’, ‘Causal Responsibility’, ‘Liability-Responsibility’, and ‘Capacity-Responsibility’, Hart (n 15) 212. For other, more recent, examples of the conceptual ‘deconstruction’ of responsibility, see Peter Cane, ‘The nature and functions of responsibility’ in Responsibility in Law and Morality (Hart Publishing 2002) 31; Nicole A Vincent, ‘On the Relevance of Neuroscience to Criminal Responsibility’ (2010) 4 Criminal Law and Philosophy 77. 73 Discussed at pp 51-64. 74 Hart (n 15) 211. Vincent suggests that ‘responsibility is more of a syndrome of concepts than it is a single, unitary or generic concept’, Vincent (n 72) 82. 75 Hart (n 15) 211. 76 Nicola Lacey, ‘Space, Time and Function: Intersecting Principles of Responsibility across the Terrain of Criminal Justice’ (2007) 1 Criminal Law and Philosophy 233, 235. 77 Discussed further at pp 124-29. 111
ascriptions of responsibility may represent the widely accepted paradigm case of criminal responsibility-attribution practices, as we begin to look more closely and to deconstruct responsibility even further, then it would seem that there may be more complexity to the story of criminal responsibility than first presumed. The next step in this thesis then, is to begin to build on this deconstructive analysis by adding in Lacey’s revised conception of criminal responsibility. I start by assessing her theoretical approach to the issue of historical contingency overall.
4. Criminal responsibility: a historically contingent concept
‘Clearly, ideas such as responsibility have a history’78 – as Lacey succinctly avers, therein capturing the crux of my analysis in this section. Despite this conjecture though, she also points out that past efforts at describing both the historicisation, and the practical contextualisation, of the philosophical debates about responsibility have often tended to be quite ‘weak’ in their formulation.79 This is partly because many of the existing analyses of criminal responsibility have been formulated in such a way as to engender ‘a concept of responsibility whose validity and conceptual appropriateness is assumed to transcend place and time’.80 The synthesised concept of responsibility that results, allows for a further cultivation of the belief that ‘there is a “right answer” to how responsibility should be understood, and this properly delineated concept is either assumed to have, or is treated as if it had, metaphysical status’.81 Lacey though is doubtful about these types of claims to analytical truth or validity within the criminal law, and her scepticism is something that I share. Like Lacey, I am not inclined to see ‘responsibility as a fixed star – the constant over space and time – that shines light on the truth of when individuals ought to be punished’.82
78 Lacey (n 1) 8. This quote is also set out at the head of this chapter, to indicate the importance that I place upon Lacey’s historicised account of criminal responsibility. 79 Ibid 6. Though Lacey does cite some exceptions to this trend at n3. 80 Ibid. 81 Ibid. To illustrate her point, she refers to the ‘carved in stone’ ideas of analytic philosophers, such as Michael Moore, who assert that the legal practices entailed in strict liability and corporate liability crimes to be ‘fundamentally mistaken in that they distort the basic conceptual structure of responsibility, which is analytically tied to concepts of moral blameworthiness that are absent in strict liability’, ibid 6. 82 Kimberley Kessler Ferzan, ‘Of Weevils and Witches: What Can We Learn from the Ghost of Responsibility Past’ (2015) 101 Virginia Law Review 947, 956. 112
Admittedly, not all legal-philosophical theorising about criminal responsibility adopts this markedly metaphysical approach. There are several theories which do take account of the history of responsibility and seek to locate the concept within the fabric of a contextualised theoretical timeline. However, as Lacey also points out, this type of historical analysis is often grounded in ‘a teleological model of historical development’,83 wherein it is ‘assumed that the modern idea of responsibility is continuous and coherent, emerging slowly but surely towards an ever more complete realization [sic] of the full, “enlightened” (the very concept, with its implications of historical progress is significant) conditions of agency and subjecthood’.84 Farmer opines that this is because many of the main writers on criminal legal theory and criminalisation have set up their legal analysis ‘within a tradition of liberal theorizing [sic] about the role and limits of the State’, which is ‘generally seen as an ahistorical question’.85 Farmer suggests then, that this has led to the promulgation and perpetuation of a somewhat selective and abbreviated history of responsibility, that in discursive terms tends to move quite swiftly from John Stuart Mill to HLA Hart.86 The legal ‘narrative’ that results from this theoretical abridgement could be described as ‘the modern liberal creation myth of criminal law’, which itself ‘has been repeated, decade after decade as the main story of criminal law’.87 This approach to a continuous and coherent – yet at the same time, ahistorical – concept of criminal responsibility is something that Lacey, for one, finds problematic.88 In particular, this is because it fails to adequately address two crucial issues, which she identifies as the following.
First, she asks, does this mean that it is always the same idea of responsibility that is being mobilised and relied upon within all of the social practices that are involved in the processes of responsibility-attribution?89 By way of an answer, she illustrates the point with her own example, saying that, ‘it should not be assumed to be the case that the philosophical foundations of discourses of responsibility in criminal law are identical
83 Lacey (n 1) 8. 84 Ibid. 85 Farmer (n 11) 2. 86 Ibid. 87 Ngaire Naffine, ‘Criminal Conversations: Farmer, Lacey and the New Social Scholarship’ (2016) 38 Sydney Law Review 505, 508. 88 As I do also, for a broadly similar set of reasons. Though in addition, I consider it problematic that this historical account does not include a fully theorised assessment of female criminal responsibility. See discussion in chapter four. 89 On this point, see Lacey (n 1) 9. 113
with those in moral debate’.90 Therefore, Lacey’s hypothesis is that, within different discourses and different social practices, ideas about responsibility could be said to be performing distinctive roles – whether they be normative or practical, for example, and according to the particular function of the criminal law they pertain to. These roles, Lacey more specifically suggests, are directly related to the paired structural problems of legitimation and coordination that are intrinsic to the criminal law.91 And whilst she does not dispute that there might be important links, at any given time, between the conceptions of responsibility that exist within the criminal law, and the moral discourse cited in her example above, any such connections should not be seen as a priori assumptions of a direct relationship between the legal and the moral, but treated rather as the object of an investigation into the relevance of a perceived connection between the two.
The second point of concern for Lacey is that the prevailing legal-philosophical scholarly approach to criminal responsibility ‘fails to consider the extent to which conceptions of responsibility have shifted over the course of the history of modern societies’, and equally importantly, how ‘these substantive shifts relate to the development of institutions and ideas in their economic, cultural and political contexts’.92 In this respect, she highlights how the contemporary debate about the concept of responsibility has long been influenced by a pre-eminent group of traditional legal philosophers and treatise-writers,93 with criminal law scholarship in general also dominated by the same type of philosophical and doctrinal analysis of the foundations of the criminal law.94 This is something that Lacey takes issue with, because both of these paradigms share one important feature – ‘they tend to proceed as if the main intellectual task is to unearth the deep logic of existing legal doctrines’, sometimes going ‘so far as to read them back onto history, as if things could never have been anything other than they are’.95
In a similar fashion to the metaphysical claims to truth and the ‘fixed-star’ validity of responsibility, as described above, Lacey considers there to be an evident tension within this proposition. Elsewhere in her account of responsibility, she elaborates somewhat on
90 Lacey (n 1) 9. 91 Ibid 13. 92 Ibid 9. 93 Ibid 10-11. 94 Ibid 12. 95 Ibid. 114
this point by drawing upon Richard Rorty’s description of a ‘present-centred’ approach to the relationship between philosophy and history.96 This present-centred method of analysis assumes that the theories of the – often, now quite distant – past, ‘can be debated, assimilated, or rejected just as if they had been written today’,97 because it is the structure of the argument that is important, not the purposes for which that particular philosophical tenet was developed at that time. Context therefore, is irrelevant to a present-centred approach, whereas, ‘by contrast, issues of context and purpose are central to any “past- centred” engagement with intellectual history’.98 As Lacey asserts, depending on which way one views the issues, these two approaches entail different relationships between philosophy and the history of ideas, and philosophy and social history more generally. So, going back to – and also now finishing off, with added emphasis – the quotation that I included at the start of this section – ‘Clearly, ideas such as responsibility have a history: what we need to understand is the relevance of that history for the conceptual as well as the practical structure of responsibility’.99 This then leads fittingly into my discussion of the conceptual structure of responsibility that Lacey refers to here, and the deconstruction of that conceptual structure to expose a revised conception of criminal responsibility – as a set of social practices which are themselves the product of a historicised network of the ideas of the law, its institutions and its actors.
5. Lacey’s criminal responsibility: the conceptual contours
In recent times, several critical legal scholars working within the socio-historical and socio-theoretic disciplinary traditions of criminal law have shown that responsibility practices are marked by various levels of complexity, that go beyond even the different types of responsibility set out by Hart. Scholars like Lacey have argued that criminal law is closely connected to larger issues of social and legal order,100 and that criminal
96 Richard Rorty, ‘The Historiography of Philosophy: Four Genres’ in Richard Rorty, Richard Mckay Rorty, Jerome B Schneewind and Quentin Skinner, Philosophy in History: Essays on the Historiography of Philosophy (Cambridge University Press 1984) 97 Lacey (n 1) 7. 98 Ibid. 99 Ibid 8 (emphasis added). 100 Predominantly Lacey (n 1); Farmer (n 11). Also, A Loughnan, ‘Asking (Different) Responsibility Questions: Responsibility and Non-Responsibility in Criminal Law’ (2016) 4(1) Bergen Journal of Criminal Law and Criminal Justice 24. 115
responsibility should be understood not merely as ‘a “thin” or abstract product of certain rules or moral norms, but a social practice or a “thick” legal “thing”, the product of a network of laws, processes, institutions and actors’.101 As Lacey puts it, to fully understand what criminal responsibility is – ‘its conceptual contours and moral foundations’ – we should also consider ‘its social roles, meanings and functions’ and ‘ask what it has been “for” at different times and in different places’.102 Thus, widening the scope of the analysis in this way moves us beyond an examination of criminal responsibility per se, to take in the broader processes of criminalisation that are implicated in evaluating and adjudicating an individual’s criminal liability within the established responsibility-attribution practices of the institutional framework of the criminal law. This revised approach then, can generate an alternative responsibility question for scholarly scrutiny. Rather than simply asking ‘who is responsible under the criminal law?’, the question becomes ‘in what ways are individuals held responsible under criminal law?’. This re-framing of the analysis ‘opens the way for multiple responses, or responses which vary from one part of the law to the other (and over time)’.103 Arguably then, deconstructing the question in this way and asking it in relation to the premenstrual defendant – in the revised format of ‘how is she held responsible?’ – could itself provide a better informed vantage point from which to assess the premenstrual defendant’s place within the criminal responsibility-attribution practices of the established framework.
Here, I wish to consider in greater detail the concept of responsibility as a type of social practice and to situate it within what Lacey calls ‘the socio-theoretic dimension of jurisprudence’.104 This point perhaps requires some additional explanation before I proceed any further. To elaborate then, as Lacey says:
We can accept that there is a ‘core’ to the idea of criminal responsibility, a core related to the idea of human agency and accountability for conduct which acts as a constant thread amid shifting theories of responsibility over time and space.105
On this basis, there is a ‘core’ to criminal responsibility which – on my understanding of Lacey’s analysis – is closely tied to existing ideas of capacity responsibility. Thus, even
101 Loughnan (n 100) 25. 102 Lacey (n 1) 2. 103 Loughnan (n 100) 25. 104 Lacey (n 1) ix. 105 Ibid 186-7. 116
within Lacey’s socio-theoretic account, Hart’s capacity paradigm continues to provide the ‘core’ normative foundation for the substantive responsibility-attribution practices of the criminal law. However, alongside this normative foundation, what Lacey also advocates for, is the pursuit of a ‘socially realistic development of normativism’,106 and an understanding of the relevant ‘socio-institutional basis’107 for these capacity-based criminal responsibility-attribution practices. According to Lacey, only by attending to the influence which this socio-institutional basis has on the criminal law’s conceptual framework, ‘can we understand, explain, and even predict the ways in which legal decision-makers interpret and apply the concept’.108 My understanding of Lacey’s proposition therefore, is that we need to be aware of the ways in which the normative foundation of capacity is refracted through the socio-institutional prism of how criminal responsibility operates in reality. Having established this point, the remainder of this section is assigned to setting out, in more comprehensive detail, Lacey’s socio-theoretic framework for the concept of criminal responsibility.
Lacey’s fundamental proposition then, is as follows – ‘Criminal responsibility, in short, is an idea which is located within a social practice of criminalization [sic], which itself is necessarily located within an institutional framework, and structured by the imperatives of legitimation and coordination’.109 In addition, Lacey argues also that the criminal responsibility-ascription practices of the modern criminal law rest on what she considers to be two simple assumptions. First, that the concept of responsibility is best thought of as a set of particular ideas that act both, to politically ‘legitimate’ and to practically ‘coordinate’ the operation of the criminal law. Accordingly:
the conditions of responsibility serve to legitimate criminal law as a system of state power, this in turn being a condition for criminal law’s power to coordinate social behaviour, a task that is accomplished in part by specifying the sorts of information or knowledge that have to be proven in the trial process precedent to conviction.110
106 As per Neil MacCormick and Ota Weinberger, An Institutional Theory of Law: New Approaches to Legal Positivism (Springer Netherlands 1986), 6, cited in Lacey (n 1) 186. 107 Lacey (n 1) 187. 108 Ibid. 109 Ibid 190 110 Ibid 2. 117
The second assumption, Lacey suggests, is that the concept of criminal responsibility tends to be shaped by three main aspects of the environment in which it operates. These are the ideas, interests and institutions of the criminal law. And, according to Lacey, each one of ‘these three contextual aspects affects [criminal responsibility’s] conceptual contours and its role or what is required of it’.111 I set out below, in more detail, what Lacey means by this.
i. ‘Ideas’
First, Lacey lays out the ideas of her theorem. Within her hypothesised re- conceptualisation, Lacey proposes that there are four ‘relatively discrete (yet sometimes overlapping) ideational frameworks’112 for criminal responsibility-attribution. These relate to ideas about capacity, character, outcome, and risk - and she describes each of these as being made up of ‘the prevailing social narratives, knowledges, and understandings of the normative contours and significance of responsibility’.113 Each idea contains a certain set of assumptions about how the human agent of the criminal law should be held accountable, responsible and potentially liable to punishment, for their criminal actions. First, there is the idea of ‘capacity’ responsibility which – in line with Hart’s capacity paradigm114 – assumes that the human subjects of the criminal law have the cognitive and volitional capacities for rational agency, and respects their decision- making capabilities as rational choice-makers endowed with powers of understanding and self-control. Adding to Hart’s account, Lacey articulates in more detail two versions of the idea of capacity theory. On the one hand there is capacity as ‘choice’, which makes ‘the knowledge, intentions and beliefs of the defendant . . . central’,115 and which generally make up the subjective mens rea and subjective fault requirements of intention, knowledge or foresight, as the paradigm conditions for criminal liability.116 On the other hand, there is the ‘fair opportunity’ version of the idea of capacity, which means that the defendant must have had a real opportunity to act other than they did in the circumstances, and which finds expression in a broader conception of mens rea that includes the
111 Lacey (n 1) 2. 112 Ibid 24. 113 Ibid 2. 114 As discussed at pp 107-12. 115 Lacey (n 1) 28. 116 Ibid. 118
standards of negligence and objective recklessness.117 On Lacey’s account, whichever idea of capacity is deployed, it maps closely onto ‘an elaborate array of fault or mens rea elements’ within the criminal law, and ‘both versions of the capacity theory of responsibility also imply a generous panoply of defences’, whereby ‘excusing conditions, such as duress, or exempting conditions, such as mental incapacity, further refine the compatibility of doctrinal arrangements with the underlying conception of responsibility’.118
The second strand of Lacey’s ideational framework is the notion of responsibility as founded in character.119 As its name suggests, here the attribution of criminal responsibility represents the evaluation and judgement of an individual’s character, which could be taken into consideration either in relation to their individual characteristics, or their status as a member of a particular group. The idea of character responsibility though is multifarious and has been advanced by different theorists in a variety of different guises.120 And, as Lacey goes on to describe, there are in fact a number of different ways in which evaluations of character have influenced criminal-responsibility attribution practices in the criminal law. This includes, at one end of the spectrum, what she terms ‘character-responsibility proper’, or an attribution of criminal responsibility wherein ‘the criminal law, on this view, seeks to convict, label, and stigmatize [sic] those of bad character or disposition’.121 At the other end of the spectrum, there is ‘character responsibility in the sense of viewing criminal conviction as grounded in the manifestation of a . . . character trait, or a disposition hostile to the norms of the criminal law – a disposition which might be, as it were, “out of character”’.122 Moreover, Lacey stresses that, despite the rise to prominence of capacity responsibility, this idea of criminal character is still a significant phenomenon – and therefore, one that should not be
117 Lacey (n 1) 28. 118 Ibid 31. 119 Ibid 33. 120 For example, Michael D Bayles, ‘Character, Purpose, and Criminal Responsibility’ (1982) 1 Law and Philosophy 5; Peter Arenella, ‘Character, Choice and Moral Agency: The Relevance of Character to Our Moral Culpability Judgments’ (1990) 7 Social Philosophy and Policy 59; Dan M Kahan and Martha C Nussbaum, ‘Two Conceptions of Emotion in Criminal Law’ (1996) 96 Columbia Law Review 269. 121 Lacey (n 1) 35. This consists of two components: the evaluation of ‘criminal responsibility as a moral or quasi-moral judgement’, and the ‘projection of that moral judgement onto the quality of the individual character’, ibid. 122 Lacey (n 1) 35-36. See also, John Gardner, ‘The Gist of Excuses’ (1997) 1 Buffalo Criminal Law Review 575. 119
overlooked – within the dynamic processes that shape the criminal law, the criminal justice process and ‘the socially received meaning of criminal conviction’.123
Lacey’s third element in this ideational framework – outcome responsibility – is based on a defendant’s conduct, and the ‘harmful outcomes’ associated with their actions.124 Here, she says, the underlying philosophical frame is consequentialist, with a ‘legitimating narrative’ that is grounded in the significance of causing harm, and which finds expression in more or less stringent forms of criminal responsibility. The prime example would be crimes of strict liability, where there is no requirement for the proof of subjective fault in order to make a finding of criminal liability.125 Lastly, she refers to the idea of risk responsibility, as founded on ‘the apprehension of risk’.126 This she describes as ‘forward-looking’, rather than ‘past-oriented’127 – asserting also that it is this type of responsibility which should pose the greatest concern for criminal legal scholars, given that it ‘appears to have particular legitimating appeal under widespread conditions of insecurity or fear’.128 Although Lacey’s consideration of this additional element of ‘risk’ provides an updated and modernised appraisal of the ideational framework of criminal responsibility, ‘risk’ is not a significant part of my analysis here.129 Rather, my focus is on the specific ideas of capacity and character, and how they relate to each other. In particular, I am interested in Lacey’s assertion that, to fully understand the criminal responsibility-attribution practices of the criminal law, what is needed is an account that is premised on a mutually constitutive relationship between these different ideas, rather than privileging any one of them.130 I come back to this proposition below, when I explore Lacey’s account of the ‘co-evolution’ of capacity and character. Here though, I continue with my account of Lacey’s tripartite framework of the ideas, interests and institutions of the criminal law. Moving on then, I consider next Lacey’s conceptualisation of the prevailing interests within the criminal law and the part that they play in shaping the ideas of capacity, character, outcome and risk.
123 Lacey (n 1) 36. 124 Ibid 41. 125 Ibid 42. 126 Ibid 46. 127 Ibid 47. 128 Ibid 46. 129 ‘Risk’ is most evident in the practices of forward-looking, preventive criminalisation. Lacey argues that these practices have become more prominent during the late-twentieth and early twenty-first century. 130 Lacey (n 1) 3. 120
ii. ‘Interests’
Lacey identifies interests as the ‘prevailing structures of power and their dynamics’,131 which are themselves legitimised by the ideas of the criminal law described above. Pointing out that traditional notions of the legitimating force of the criminal law have long orientated around the ideological maxim that all persons are equal before the law, she contends that the antithesis of this dictum might be closer to the truth. Thus, she says, ‘the reality is that the criminal law is generally shaped by powerful interests: it is made by elites, while it is disproportionately enforced against non-elites’.132 Lacey identifies the most salient interests and forms of power that have shaped the development of ideas about criminal responsibility as: first and most importantly, political power and, secondly, the distribution and scope of economic power in society. As an example of the influencing power of these interests, Lacey cites the phenomenon of ‘overcriminalization’ [sic], which, she says, has been a persistent theme within criminal law scholarship of recent decades, and something that has been driven predominantly by political interests.133
In addition, Lacey refers to the growing influence of professional power – leading examples of which are, the growth and power of the legal profession, alongside the increased organising influence of the civil service. More importantly, she also includes in this analysis, ‘the growing power and organization [sic] of a range of other professions (including the medical profession, [and] the “psy” professions’ which, drawing on new knowledge in science, medicine and criminology, have ‘fundamentally changed the conditions under which ideas of responsibility are formed and put into practice’.134 Particularly significant, she says, is the way in which the influence of the medical and scientific professions has led to the incorporation of new forms of scientific evidence within the criminal justice system.135 This itself has had a fundamental impact on the processes of coordination in the criminal law, for as well as shaping the design and
131 Lacey (n 1) 2. 132 Ibid 79. Lacey references Marx and Engels as the most influential proponents of the idea that law is fundamentally shaped by underlying power structures. For a contemporary analysis, see Alan W Norrie, Law, Ideology and Punishment (Springer 1991). 133 Lacey (n 1) 82-83, 86-87, 99. 134 Ibid 83. 135 Barry Mitchell, ‘Putting Diminished Responsibility Law into Practice: A Forensic Psychiatric Perspective’ (1997) 8 The Journal of Forensic Psychiatry 620; Timothy Hardie, Susan Elcock and RD Mackay, ‘Are Psychiatrists Affecting the Legal Process by Answering Legal Questions?’ (2008) 18 Criminal Behaviour and Mental Health 117. 121
implementation of criminal processes in general, more particularly this has also led to the substantiation of a strong mandate for the types of specialist evidence that are allowed to be taken into consideration in the criminal trial.136 Clearly, this also resonates closely with scholarly arguments about the increasing influence of the ‘psy’ professions over responsibility-attribution practices.137
Lacey identifies one further power-related interest within contemporary criminal responsibility-attribution practices. This, she calls ‘cultural or symbolic’ power, which itself is closely tied to the power of the media. According to Lacey,138 the cultural aspects of race, ethnicity and religious discrimination are all additional contextualising factors that need to be taken account of within scholarly conceptions of responsibility – as is the relatively low level of criminalisation of women as a social group.139 Understanding the complex interplay of these elements therefore requires a sensitive interpretation of the interactions between each one, as well as the forms of powerlessness – or ‘the lack of voice or status’140 – that already exist in society. Transcribing these contextualising factors onto patterns of responsibility-attribution, there is a particular issue in terms of the stereotypes that underline and perpetuate race, class and gender. Importantly, Lacey highlights culturally based ‘assumptions about women’s agentic capacities’ which can themselves be ‘highly relevant to the interpretation of their capacity responsibility at various times’.141
Finally, for Lacey, the power of the news media and other modern methods of mass communication, can also have a significant role to play within existing patterns of criminal responsibility-attribution practices. This proposition can be understood, both in terms of the media’s power in legitimating – and sometimes delegitimating – particular ideas about criminal responsibility, and also in the way that the mass media tends to portray stories about crime and criminality in an often alarmist and sensationalistic manner.142 Therefore, the media employs a variety of socio-cultural resources not only to
136 Lacey (n 1) 84. 137 As already touched upon in both chapters one and two. 138 See generally Celia Wells and Oliver Quick, Lacey, Wells and Quick, Reconstructing the Criminal Law: Text and Materials (4th edn, Cambridge University Press 2010). 139 Lacey (n 1) 84. 140 Ibid 84. 141 Ibid 85. 142 Ibid. 122
represent crime and criminality – which is arguably of relevance in respect of the implementation of a form of character responsibility – but it can also use these resources to underpin the vectors of power that actually construct society’s practices of criminal responsibility ascription in the first place.143 Thus, ‘popular culture is replete with messages about what it is to be a responsible subject’, and ‘these form a key part of the context in which legal practices emerge and take their meaning and significance’.144 Assessing these interests in tandem with those discussed above then, Lacey suggests that because ‘patterns of criminal responsibility attribution are rooted in the deep political and social power dynamics which shape prevailing interests’,145 then any attempt to change the processes of criminal responsibility-attribution will always need to take account of the vectors of power and dynamic forces that shape these various interests.
iii. ‘Institutions’
Last, I turn my attention to Lacey’s analysis of the key institutions of the criminal law. As Lacey rightly asserts, the power-based interests set out above cannot exist in a social vacuum but must rely on a robust institutionalised framework for the purposes of their legitimation and coordination. The relevant institutions for Lacey’s understanding of criminal responsibility would therefore include ‘the political system, economic institutions, courts, trial processes, and judicial systems more generally (the legal profession, the judiciary, the media, and other relevant professions, e.g., the police, prosecutors, and criminal justice officials of various kinds); the civil service; the penal system; and, increasingly in many countries, corporations’.146 In truth, there is not much to be said here about the role of these institutions with regard to the story of the premenstrual defendant – beyond the observation that each of these institutions clearly has a part to play in the narrative. And perhaps also, as Lacey points out, that whilst there is an ascertainable conceptual distinction between the interests and institutions of her criminal responsibility framework, it is more difficult ‘to prise apart’ the interpretive analysis of these two elements.
143 See for example, R Reiner, ‘Media-made Criminality: The Representation of Crime in the Mass Media’ in Mike Maguire, Rod Morgan and Robert Reiner (eds), The Oxford Handbook of Criminology (4th edn, OUP) 302. 144 Lacey (n 1) 85. 145 Ibid 106. 146 Ibid 3, and ch 4 generally. 123
These then are the essential components – the ideas, interests and institutions – of Lacey’s tripartite conceptual framework of criminal responsibility. My treatment of these concepts has necessarily been far more succinct than the level of attention which Lacey gives to these issues in her own extended analysis. Arguably though, there is enough detail here to demonstrate the intrinsic theoretical value of Lacey’s ‘socio-institutional’ contextualisation of the concept of criminal responsibility. Moreover, that even though this might be viewed primarily as a descriptive account, it offers an additional insight as an interpretive hypothesis – because it helps us to understand, evaluate and perhaps even predict the way in which legal decision-makers apply the concept of criminal responsibility. The specific advantage of this in the context of this thesis is that it allows for a ‘dismantling’ of the ‘master narrative’ of criminal responsibility, in order to better appreciate the position of the premenstrual defendant within the framework of established criminal responsibility-attribution practices. Before I go on to assess how Lacey’s tripartite conceptualisation of criminal responsibility applies in relation to the premenstrual defendant, there is one final part of Lacey’s historicised analysis that I need to attend to. This relates directly to her hypothesis as to ‘the shifting principles of responsibility-attribution over time’,147 and her related argument regarding the historical co-evolution of capacity and character within the criminal responsibility-attribution practices of the English courts – as is set out below.
6. The co-evolution of capacity and character: a ‘Jekyll and Hyde’ story
What then is to be made of ‘the story of the evolving conceptions of legal responsibility’148 – that Lacey proposes as part of her account of criminal responsibility? In short, Lacey’s answer to this question is that the legal framework for finding an individual criminally responsible has shifted alignment significantly over the course of the past two centuries.149 In particular, she argues that it is wrong for us to think that the character-based responsibility-attribution practices of English criminal law are purely a relic of the past. Rather, she hypothesises that the influence of character can still be felt –
147 Lacey (n 1) 24. 148 Ibid 12. 149 Ibid ch 5. 124
albeit at a ‘subterranean’ level150 – within the operation of the criminal justice system. Below, I explore Lacey’s arguments on this point in more detail. First, by setting out Lacey’s hypothesis of the co-evolution of capacity and character within the criminal law more generally. Then, by assessing how Lacey’s interpretation of the co-alignment of these two ideas could be said to have an impact on how we perceive and evaluate the premenstrual defendant’s own criminal responsibility.
First, Lacey points out that it was character responsibility which initially dominated pre- modern practices of criminal-responsibility attribution. Thinking back to the eighteenth- century, and assessing the processes of criminal justice from that time, ‘the trial was focused not on internal questions about the defendant’s state of mind, but rather on external facts of conduct’.151 Effectively, this meant that a finding of criminal responsibility entailed a judgement as to a person’s bad character. Moving forward, between the middle of the nineteenth century and the latter part of the twentieth century, character responsibility appears to have waned. As Lacey puts it, this was the dawn of ‘an increasingly individualist world’,152 where the ‘freely choosing responsible citizen stood centre stage’.153 Accordingly, alongside the concurrent developments in medicine and psychology during this era, the legal system of the day began to focus on a series of ‘increasingly elaborate doctrines of mens rea’.154 Thus, did the thought processes and subjectivity of the individual defendant start to become a purportedly identifiable and verifiable ‘object of proof’.155 Lacey then goes on to describe a third stage of evolution which followed this period, a time when capacity was combined with outcome responsibility. Finally – according to Lacey – by the end of the twentieth century and bringing us up to the present day, there was yet another alignment, between capacity and risk. Therefore, Lacey argues that currently, capacity responsibility still represents the paradigm idea of contemporary criminal responsibility-attribution practices, particularly as regards some of the more serious ‘core’ criminal offences, such as murder, assault and theft. But, she says, there has also emerged a new category of risk, which itself has been
150 Lacey (n 1) 148. 151 Ibid 137 (emphasis original). 152 Ibid 140. 153 Ibid 141. 154 Ibid 139. 155 Ibid 144. 125
accompanied by a resurgence of character responsibility, in the specific context of ‘a bad character’, who is deemed to be dangerous and to pose a threat to society.156
This then, is Lacey’s hypothesised trajectory of the ideas of criminal responsibility- attribution over the last two centuries. On Lacey’s account, this would suggest that character is still a factor within the modern criminal justice system. How though, can this be said to translate into modern evaluative practices of criminal-responsibility? Elsewhere, Lacey suggests one particular way that this might occur, and to articulate her point, she makes analytical use of the story of Jekyll and Hyde.157 Here, I borrow from her analysis, to pose the question as to whether, and to what extent, it can indeed be said that character is still alive and well within the criminal law.
The narrative of Jekyll and Hyde is well known.158 Lacey’s argument in relation to the story is more nuanced though, and it goes along these lines. According to Lacey, Stevenson’s Jekyll and Hyde serves as a powerful metaphor for historical notions of the divided subjectivities of the ‘capacity’ and ‘character’ models of criminality,159 and that, ‘A close reading of the story can help to illustrate the complex mix of elements bearing on criminal responsibility-attribution’.160 Thus, Lacey employs the novella’s narrative to demonstrate her hypothesis that – although the text was written at a time of significant nineteenth century scientific advancement, increasing medicalisation and the growing psychologisation of notions of capacity – arguably at that time, decisions about a person’s criminality still relied on an understanding of the moral evaluation of their character as the basis for the decision about criminal responsibility-attribution. Therefore, unpicking the complex mix of elements set out in the narrative of Jekyll and Hyde, raises difficult questions about our longstanding assumptions as to the operation of ‘capacity’ and ‘character’ within the criminal law. Principally, Lacey says, the story of Jekyll and Hyde prompts us to reflect on ‘whether either scientific knowledge or moral evaluation of character can provide a stable basis for attributions of responsibility’.161
156 Lacey (n 1) 147. 157 Lacey (n 42). 158 Robert Louis Stevenson, The Strange Case of Dr Jekyll and Mr Hyde and Other Tales of Terror (hereafter Jekyll and Hyde) (1886) (Penguin Classics 2002). 159 Lacey (n 42) 111. 160 Ibid 111. 161 Ibid (emphasis original). 126
Lacey substantiates her speculative argument by pointing out that Jekyll and Hyde had been written at the height of nineteenth century developments in science, medicine and psychology. Yet effectively, the medico-legal discursive narrative of the story suggests that there was still some societal doubt as to whether it should be capacity or character that formed the basis for contemporary legal judgements. She develops this point in her analysis, saying that even the decisions of the ‘mind doctors’ of that era were still imbued with evaluations of moral character.162 Thus, on Lacey’s formulation, this points, not to a gradual expunging of character from the discourses and practices of criminal responsibility-attribution, but rather to a co-evolution of – and arguably, a continuing legal concern with – both the concept of capacity and the concept of character.163 Accordingly, she argues that ‘It is therefore important not to exaggerate the apparent shift from an evaluative to a scientific world-view’.164
For Lacey then, the story of Jekyll and Hyde stands as ‘a powerful symbol of the continuing appeal of a strongly evaluative and partially character-driven practice of responsibility-attribution even at the supposed climax of [an] era of “psychologisation of criminal responsibility”’.165 The argument that she takes from this is that, if it is possible to discern the persistence of character responsibility in the highly psychologised context of nineteenth century society, then this could suggest that the trajectory of criminal responsibility overall has long been one of ‘a shifting alignment of two always co-existing principles of attribution, based, respectively on character and on engaged psychological capacity’.166 Lacey suggests that this might be a better view than the idea that capacity has gradually come to replace character.167 Thus, she argues:
162 Lacey (n 42) 111. 163 Also, Nicola Lacey, ‘The Resurgence of Character: Criminal Responsibility in the Context of Criminalisation’ in RA Duff and Stuart P Green (eds), Philosophical Foundations of Criminal Law (OUP 2011). 164 Lacey (n 42) 122. 165 Ibid 128. 166 Ibid 129. 167 Ibid. 127
A world which purports to give priority to capacity-based practices of responsibility-attribution – one which claims to take individuals and their engaged capacities rather than their social status or appearance seriously – would be a world in which there is a strongly felt sense of the legitimation requirements posed by individual freedom, and one which enjoys some confidence in its own institutional capacity to deliver such individualised judgements while maintaining adequate levels of social control. Such a world has arguably never existed.168
According to Lacey’s analysis, whilst we can accept that capacity certainly has a strong foothold in modern conceptions of responsibility, in fact, ‘the move towards the investigation of capacity responsibility was never complete’.169 And, whilst many theorists are now content to rely on capacity as the ‘core’ of contemporary criminal responsibility-attribution practices, Lacey’s analysis provides some support for the fact that other ‘ideas’ have also been influential. Character, it would seem, has also had an important role to play across the course of the historical development of criminal responsibility – to the extent that, ‘there is reason to doubt whether assumptions about character were ever entirely evacuated from criminal law in its path towards the refinement of a notion of individual capacity-responsibility’.170 Arguably then, Lacey’s hypothesis about the co-evolution of capacity and character within the criminal law sounds a note of caution for my analysis of how we do in fact evaluate the premenstrual defendant’s criminal responsibility.
On my reading of Lacey’s Jekyll and Hyde story, it is conceivable that there is always a certain degree of scope for notions of character to bleed into the ideas of capacity-based responsibility-attribution practices. Thus, it could be hypothesised that notions of character can still have an impact on contemporary criminal responsibility-attribution practices – even in the modern era, when capacity is considered to be the ‘jewel in the crown’ of criminal liability.171 Based on the analysis that I have set out so far in this thesis, I would agree with Lacey on this point – particularly in relation to the premenstrual defendant. The discussion in previous chapters has already demonstrated that certain ‘stock stories’ and stereotypes can feature as strongly influencing factors in female defendants’ stories of criminal responsibility.172 In addition, the debate around the
168 Lacey (n 42) 129. 169 Lacey (n 1) 164. 170 Ibid 152-3. 171 Ibid 175. 172 As discussed in chapter one, at pp 53-56. 128
medicalisation of the premenstrual disorders, and the stigmatisation of premenstrual sufferers, has shown how the question of a premenstrual defendant’s medical disorder might be complicated by reference to a wider evaluative debate that goes beyond an examination of how her capacity is affected. Thus, do I find Lacey’s account of the ‘Jekyll and Hyde’ co-existence of capacity and character, and her arguments about the ‘subterranean’ aspects of character within the modern criminal law, to be worth pursuing, in order to examine how far this might apply to the premenstrual defendant. Arguably, if it is the case that character can be an influencing factor, then basing the decision about a premenstrual defendant’s criminal responsibility on non-legitimate, character-based judgements is an untenable position, and something that needs to be addressed.
Of course, there is one very particular way in which ‘character’ can be said to be a part of the premenstrual defendant’s story – and that is in terms of her gender. However, despite the level of attention that Lacey gives to the issue of criminal responsibility overall, it is perhaps somewhat surprising that she is notably silent on the female character of criminal law and the important question of female criminal responsibility. In fact, neither sex nor gender features as a significant part of Lacey’s deconstructed historical and conceptual schematic of criminal responsibility. This is despite her assertion that, ‘one of the most radical changes in the conception of legal personhood, viewed in modern perspective [is] the relatively recent acknowledgement of women as legal persons’.173 Prima facie, this would seem an important omission on Lacey’s part, particularly given her previous scholarly focus on the women of the criminal law.174 That is, if it amounted to a conscious decision not to consider in detail the status of women within the framework of responsibility that she sets out.
However, subsequent to the publication of her monograph, Lacey has explained her rationale for not including a more detailed analysis on this point, saying that ‘the relative absence of attention to questions of gender in In Search of Criminal Responsibility was the product of the fact that that [sic] book already had a rather ambitious – indeed some might say unmanageable! agenda – and itself engaged with a wide range of questions and
173 Lacey (n 1) 183. 174 Nicola Lacey, Women, Crime and Character: From Moll Flanders to Tess of the d’Urbervilles (OUP 2008). 129
genres of scholarship’.175 More importantly, she acknowledges that the specific dynamics of gender, alongside also the issues of race and class, should have had a more prominent place in the book, mainly because this ‘relatively brief treatment of gender risks obscuring an implicit gendering male of – particularly some – paradigms of responsibility’.176 She then goes on to suggest that perhaps this oversight could have been remedied if she had followed up on her own analysis about the belated inclusion of women within legal conceptions of personhood by providing an ‘additional case study illustrating the continuing force of gender assumptions in the judicial interpretation of responsibility’.177 In my turn, I impliedly interpret this acknowledgement from Lacey – that gender should be a significant consideration for the concept of criminal responsibility – as corroboration and endorsement for the next manoeuvre that I intend to make in this project. Accordingly – and in light of the sex/gender lacuna that Lacey has herself acknowledged – in chapter four I pick up the narrative thread of this story by setting out my own case study of gendered assumptions and criminal responsibility, in relation to the female characterisation of the premenstrual defendant. And in this way, I hope to advance the critical analysis of criminal responsibility to an even greater degree than that already set out by Lacey in In Search of Criminal Responsibility.
7. Advancing the narrative
In my efforts to conceptualise the premenstrual defendant’s criminal responsibility, my focus in this chapter has been on mapping, and then deconstructing, the master narrative of criminal responsibility. Thus, my main aim here, in light of the feminist legal narrative framework that I adopt in this thesis, was primarily to challenge the traditional ‘story’ of criminal responsibility, and ‘to dismantle and rearrange the framework’178 within which the premenstrual defendant’s story has been told in the past. The purpose of this deconstructive project in this chapter has been to ask the question: what can we learn from deconstructing the law’s own narrative and challenging the story that has traditionally
175 Nicola Lacey, ‘In Dialogue with Criminal Responsibility’ (2017) 4(2) Critical Analysis of Law 244, 247. 176 Ibid 247. 177 Ibid. 178 Graycar (n 4) 298. 130
been told about criminal responsibility?179 And the underlying objective has been to expose the reality of the stories that tell us about how the law works in practice, thereby to identify – and potentially also destabilise – the values embedded within the entrenched historical framework of the concept of criminal responsibility. Whilst the premenstrual defendant’s story may not be visible across the whole of this process of deconstruction, her legal narrative has implicitly guided the direction that I have taken in this chapter, in assessing the way in which Lacey’s socio-theoretic concept of criminal responsibility can provide an enhanced understanding of the premenstrual defendant’s status within the criminal law.
Here, I set out some concluding thoughts about the issues raised by the above concerns. I arrange these conclusions according to the ‘deconstructed’ structure of this chapter, addressing first the historical, and then the conceptual, issues that have been thrown up by the foregoing analysis. I would say also that much of the work has already been done within the main body of this chapter, so I do not intend to rehearse once again all the relevant arguments. Rather, I focus here on the most salient points, and those conclusions that will help to carry the narrative forward into the next chapter. Broadly, these relate to my arguments about the relevance and validity of Lacey’s socio-theoretic concept of criminal responsibility, both in general and for the way in which it helps to contextualise the premenstrual defendant’s position in the criminal law. Arguably, the hypothesis that Lacey presents, of the socio-institutional mechanisms that are in operation within the criminal law, helps to provide a clearer account of the ideas, interests and institutions that have fundamentally shaped contemporary criminal responsibility. To this end, Lacey’s account provides a significantly more appropriate framework within which to analyse my premenstrual defendant’s status.
First – and as with the findings in previous chapters – ‘history’ has once again proven to be an important element to the story. In one respect, this is apparent within the ‘lineage’ of the overarching scholarly theories regarding the doctrine of criminal responsibility – as encapsulated in the legal-philosophical ideas behind the Hartian capacity paradigm, and the subsequent move towards a critical legal approach that itself recognises the historical contingency of criminal responsibility. In a further respect, this historical focus
179 As discussed in chapter one, at pp 57-59. 131
on criminal responsibility has also highlighted the importance of adopting a ‘past-centred’ approach to this story overall. That is, an approach which recognises the centrality of context to the historical conceptualisation of criminal responsibility. Arguably also, the socio-historic approach presented here, counsels against any grand theory or teleological vision of responsibility, recognising instead that the concept of criminal responsibility owes much to the ideas about its historical contingency. This itself is suggestive of two further conclusions. First, and most importantly, that the concept of criminal responsibility is not ‘fixed’, but that it is in fact susceptible to various forms of deconstruction – and, consequently, that it is therefore flexible and tractable enough to allow for a potential re-construction. Conceivably then, this suggestion is enough in itself to open up a theoretical space for a potential reconfiguration of the existing concepts and practices of criminal responsibility-attribution. Adopting this historical approach, I would therefore argue, provides both the justification and the foundational starting-point for a potential reconfiguration of the existing responsibility-attribution practices that pertain to the premenstrual defendant – a separate and specific enterprise that I turn my attention to in chapter five.
The second conclusion follows from the first. Again, it is the historical and temporal context that is key. For in accepting that the concept of criminal responsibility has been shaped thus far by its previous time-contingent contexts, I recognise that whatever re- construction of the premenstrual defendant’s story might be attempted, this needs to be undertaken in line with the social context within which such a proposal is made. This resonates with Abrams’ proposition set out in an earlier chapter, that ‘the extent to which a narrative scholar will confront a “legal problem” or will advance proposals that mainstream scholars recognize [sic] as “normative” will depend on the phase in the social response in which she offers her stories’.180 Taking this into account, an important question for the next chapter then is: how receptive is ‘the audience’ to whom the story of the premenstrual defendant’s criminal responsibility is being told? Translating this question into a usable analytical tool, this means that I need to assess contemporary prevailing social narratives in order to decide how best to frame the issue of the premenstrual defendant’s criminal responsibility. So, effectively, this question becomes:
180 Kathryn Abrams, ‘Hearing the Call of Stories’ (1991) 79 California Law Review 972, 1035. 132
how to reconstruct her story of criminal responsibility so that it is suitable for a twenty- first century audience?
Turning my attention now to the additional conceptual conclusions drawn from my analysis in this chapter, it is clear that – conceptually speaking – responsibility is not a fixed entity in this respect either. Whilst capacity may be the normative starting-point for a discussion about current criminal responsibility-attribution practices, arguably that is not the end of the story. For the deconstructive project in this chapter has demonstrated that even a deep-rooted philosophical idea like that of Hart’s capacity paradigm can be broken down to a greater degree. Furthermore, the discussion set out here has also called into question the pre-eminence of the capacity paradigm per se. Indeed, if we accept Lacey’s account of the shifting alignment and non-linear development of ‘capacity’ and ‘character’, then the more accurate story of criminal responsibility is that each of these concepts have themselves ‘vied’ for conceptual prominence over the course of their legal history. According to Lacey’s account then, character should be considered to have re- entered the discursive frame – and the framework of modern criminal liability. That is, of course, if it can be said that character ever left in the first place. Arguably, this aspect of character within the concept of criminal responsibility, has implications for the story of my premenstrual defendant. In fact, it is this notion that directs the discussion in the following chapter, where I focus in particular on the female ‘characterisation’ of the premenstrual defendant’s criminal responsibility.
I began this chapter by setting out the way in which I intended to deconstruct the master narrative of criminal responsibility. According to the feminist legal narrative framework of this thesis, the aim here was to ‘dismantle and rearrange the framework within which . . . stories are told’.181 Broadly, it can be said that the framework has been dismantled, although the project of rearrangement has yet to begin. In addition, by applying Lacey’s re-conceptualised historical and criminal responsibility, then like her, I have aspired ‘to tread a middle path between an internal, doctrinal focused legal analysis and an external, social analysis: a middle path which explores the distinctive institutional organization [sic], techniques and assumptions of the legal order while investigating their implications for social systems beyond legal order’.182 Whilst the focus of this chapter
181 Graycar (n 4) 298. 182 Lacey (n 1) viii. 133
has been primarily on the idea of criminal responsibility itself, I have also attempted to bring Lacey’s analysis to bear on the story that I tell here, about the premenstrual defendant. As Lacey says, ‘Normative criminal law theory purports, after all, to have some grounding in the reality of the criminal law and to offer an account of the implicit normative structure of an actually existing social practice’.183 The enterprise in this chapter has been to find a way of bridging the gap between theory and practice – and to find an appropriate way to assess the ‘social’ criminal responsibility-attribution practices in relation to the premenstrual defendant.
As Lacey argues, there are analytical advantages to be had, ‘once we let go of the metaphysical fantasy that responsibility just “is” a certain kind of thing, and think instead of responsibility as a normative device – a matter of construction and ascription’.184 Thus, letting go of this idea – and our other preconceptions about responsibility-attribution practices – might allow us, first to understand how the story of responsibility has been written and re-written in the past, and second to better appreciate how we might go about re-writing the story of responsibility in the future. Arguably, in the case of the premenstrual defendant in particular, this could be a vital revision to her story – one that would allow for a version of criminal responsibility that more appropriately reflects the reality of the individual premenstrual defendant’s circumstances.
I leave it to Anne Reynolds – one of the premenstrual defendants from the case history set out in chapter one – to have the last word here, for her comments are apropos of this very point: ‘When you find yourself on trial for killing someone there’s a belief that you can just tell the truth and you’ll be OK. Then you realise you have to play a certain game and certain roles: and if you don’t know the rules of the game, what chance have you got?’185 In this chapter, I have set out the ‘rules of the game’ for criminal responsibility – how they have traditionally been understood and how they could also be interpreted in a more socially-realistic way, within the framework of Lacey’s hypothesis. What I need to do next is to establish the specific ‘rules of the game’ for the premenstrual defendant in
183 Lacey (n 1) 185. 184 Ibid 203. 185
terms of her female criminal responsibility, and that is what I turn my attention to in the next chapter.
135
CHAPTER FOUR
CHARACTERISING THE PREMENSTRUAL DEFENDANT’S CRIMINAL RESPONSIBILITY
. . . there is a tendency for the trials of women to be turned into trials of their character . . .1
1. A ‘trial of character’ for the premenstrual defendant
Having examined the overarching ‘story’ of criminal responsibility, I turn my attention to the narratives of the female defendants within that framework, and how their stories tend to be told in the context of contemporary criminal responsibility-attribution practices. As established in the previous chapter, generally the rules of criminal responsibility are premised on a set of mainstream theoretical assumptions,2 which centre on the presumed neutrality and objectivity of the law in general.3 Thus, within the criminal law’s outwardly liberal ideological framework, ‘the legal subject is constructed as a gender-less, race-less, class-less individual abstracted from its social situation’.4 Given these abstract ideals, how can it be said – as the quote above would lead us to believe – that the trials of women often tend to be turned into ‘trials of their character’?
1 Donald Nicolson, ‘Criminal Law and Feminism’ in Donald Nicolson and Lois Bibbings (eds), Feminist Perspectives on Criminal Law (Cavendish Publishing 2000) 16. 2 See further HLA Hart, Punishment and Responsibility: Essays in the Philosophy of Law (OUP 2008). 3 For a critical discussion on this point, see Nicola Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Hart Publishing 1998) 4. 4 Celia Wells and Oliver Quick, Lacey, Wells and Quick, Reconstructing the Criminal Law: Text and Materials (4th edn, Cambridge University Press 2010) 95. 136
By and large, and as many feminist and critical legal scholars have long recognised,5 the law’s artifice of neutrality hides a number of gendered assumptions about women in general, and female criminality in particular.6 As ‘sexed’ subjects,7 the female agents of the criminal law are often viewed and treated differently from their male counterparts.8 Equally, the in-court and out-of-court ‘stock stories’ that are told about female defendants can result in them being ‘character’-ised in a particular way.9 Whether the tale that is told about a female criminal is one of ‘mad’-ness, ‘bad’-ness, ‘sad’-ness or otherwise,10 these gendered narratives can have a particular influence on both the substantive criminal responsibility-attribution decisions of judge and jury, and the exercise of discretion in the criminal justice system.11 Thus – either explicitly12 or implicitly13 – the criminal law can treat female defendants differently to male defendants, on the basis of their sex or gender.14
This then is the context for the discussion in this chapter. In line with the feminist legal narrative framework set out in chapter one, the analysis that I conduct here is targeted at assessing the question posed by Abrams:15 how socially aware of the ‘story’ and receptive to it, is the audience to whom the story is being told? Or rather, how does the current ‘phase in the social response’, factor into the question of whether the premenstrual
5 For an overview, see Nicolson and Bibbings (n 1). Also, Margaret Davies and Vanessa E Munro (eds), The Ashgate Research Companion to Feminist Legal Theory (Routledge 2013). 6 Ngaire Naffine, Criminal Law and the Man Problem (Hart Publishing 2019). Certain assumptions also operate in relation to women as victims: Katie M Edwards and others, ‘Rape Myths: History, Individual and Institutional-Level Presence, and Implications for Change’ (2011) 65 Sex Roles 761. 7 See further Nicola Lacey, ‘On the subject of sexing the subject’ in Ngaire Naffine and Rosemary J Owens (eds), Sexing the Subject of Law (Sweet and Maxwell 1997). 8 Ngaire Naffine, ‘Men, Women and Civil Society: Male Civility in the Twenty-first Century’ in Naffine (n 6) 166. 9 As discussed in chapter one at pp 53-56. Also, Christine Bell and Marie Fox, ‘Telling Stories of Women Who Kill’ (1996) 5 Social & Legal Studies 471; Donald Nicolson, ‘Telling Tales: Gender Discrimination, Gender Construction and Battered Women Who Kill’ (1995) 3 Feminist Legal Studies 185. 10 Siobhan Weare, ‘“The Mad”, “The Bad”, and “The Victim”: Gendered Constructions of Women Who Kill within the Criminal Justice System’ (2013) 2 Laws 337. 11 Susan SM Edwards, Women on Trial: A Study of the Female Suspect, Defendant, and Offender in the Criminal Law and Criminal Justice System (Manchester University Press 1984). 12 As with the offence/defence of infanticide. Discussed further in Arlie Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law (OUP 2012) ch 8. 13 For example, in respect of the number of female defendants who make use of the diminished responsibility defence. On this point, see Hilary Allen, Justice Unbalanced: Gender, Psychiatry and Judicial Decisions (Open University Press 1987). 14 Dorothy E Roberts, ‘The Meaning of Gender Equality in Criminal Law’ (1994) 85 Journal of Criminal Law and Criminology 1. 15 As discussed in chapter one, at pp 59-61. Also, Kathryn Abrams, ‘Hearing the Call of Stories’ (1991) 79 California Law Review 971, 1035. 137
defendant should be held fully responsible for her criminal actions? Ultimately, the argument I make in this chapter is that – at this point in time – the way in which ‘character’ operates in respect of female defendants should counsel against the inception of a specific ‘premenstrual defence’ – which, by its very definition, is intrinsically gendered. The rationale for this proposition is that, within the judgements of the criminal courts and the prevailing attitudes of society at large, the ‘character’ of those women who come before the criminal law is often perceived to be very different to the orthodox rational agent of legal-philosophical scholarly discourse. Even in the modern, and conceivably more gender-enlightened contemporary context, she is still judged differently. Therefore, it is my contention that the way in which this differential treatment currently takes effect should forestall a defence which is solely predicated on the premenstrual defendant’s sex/gender difference.16 That is not to say that she should be precluded from an excuse altogether though, and the distinct partially excusatory defence that I propose for her (and others) instead, is the focus of chapter five. Here though I set out my analysis of why the premenstrual defendant’s gendered ‘character’ is an important issue, and why it should continue to prompt future debate, even if it does not suffice as the basis for a criminal defence at this time.
To make and justify my arguments, in this chapter I work through the following stages of discussion. First, I revisit Lacey’s assertion, set out in chapter three, that ‘character’ can be said to influence contemporary criminal law practices in general. Then I examine the impact of character on theoretical notions of female criminality, to understand better the ‘character-ised’, or indeed ‘character-less’, woman of criminal legal discourse. Following this, I turn my attention to the impact that gender has had on specific criminal excuses of the special part of the criminal law – with infanticide and diminished responsibility being those that provide the greatest insight to my analysis here.17 To end the chapter, I draw some conclusions on the lessons that can be learned from the ‘character-isation’ of women within the criminal law, and I assess how the broader narratives of female defendants in general can point us in a new normative direction for the premenstrual defendant in particular.
16 For now, at least. This, of course, may be subject to change depending on future legal, scientific and social developments. 17 Primarily because, within the criminal law, both are structured as anomalous, ‘Janus-faced’ partial defence-offences, Loughnan (n 12) 226. 138
2. The ‘characterful’ discourse of female criminal responsibility
As the quote at the outset of this chapter illustrates, there is a tendency for the criminal trials of some women to be conducted as ‘trials of their character’.18 Thinking back to the discussion in chapter one, arguably this idea comes through from the quintessential notions of femininity and the pathologisation of female criminality, espoused by previous generations.19 One could argue also that this idea is evident in Bell and Fox’s description of the prominent female characters within the criminal law: the villainous ‘Lady Macbeth’, the ‘Pygmalion’ dupe, and those female criminals who are characterised as ‘mad’.20 Thus, the notion of the female ‘trial of character’ needs some further unpicking – a task that I undertake in this chapter. Here I ask, what exactly does this reference to ‘character’ relate to?21 Is this the same as the idea of ‘character’ from the last chapter, or does ‘character’ take on a different meaning in relation to the female defendant? Is a ‘trial of character’ a good thing, or a bad thing? And lastly, assessing the premenstrual defendant in the context of this idea of the female character of the criminal law, would a defence predicated on a characterisation of her own sex/gender difference therefore work to her advantage,22 or could it potentially do an injustice – both to her and to women within the criminal justice system as a whole?23
Some critics would say that criminal ‘character’ responsibility is a thing of the past.24 Lacey though, considers this to be an inaccurate reflection of contemporary criminal law practices and that character can in fact still influence criminal responsibility in certain respects.25 On the one hand, she argues that character occupies a key position within
18 Nicolson (n 1). 19 As discussed in chapter one, at pp 20-24. Also, Lucia Zedner, Women, Crime, and Custody in Victorian England (Clarendon Press 1991). 20 As discussed in chapter one, at p 54. Also, Bell and Fox (n 9) 472-73. 21 My discussion of ‘character’ in this chapter is deliberately nuanced and cuts across a variety of lexical meanings – from its usage in the ordinary sense, to its use as a metaphor, and including also ‘character’ as related to criminal responsibility-attribution practices. This discursive ambiguity emphasises the nebulous nature of female criminal responsibility, and entrenched ideas about ‘the female character’ as a person or a type of person within the criminal law. 22 Writing about the premenstrual defendant, McArthur argues that ‘the principles of fundamental justice demand that certain criminal law defences [sic] be reworked from the particular position of the women so their ‘voices’ are truly heard’ (emphasis original): Karen M McArthur, ‘Through Her Looking Glass: PMS on Trial’ (1989) 47 University of Toronto Faculty of Law Review 825. 23 See discussion in Helena Kennedy, Eve Was Framed: Women and British Justice (Vintage 1993) 104-5. 24 See further Fletcher’s discussion of the ‘manifest criminality’ of previous eras, in George P Fletcher, Rethinking Criminal Law (OUP 2000). The general argument being that character has since been replaced by a subjectively orientated, capacity-based approach to responsibility. 25 Nicola Lacey, In Search of Criminal Responsibility: Ideas, Interests and Institutions (OUP 2016) 148. 139
discretionary pre-trial and sentencing practices – something that is important to the debate about the processes of criminalisation overall.26 On the other, she suggests that, despite the predominant legal-philosophical view that the concept of criminal responsibility is solely grounded in the notion of capacity, there is in fact a ‘subterranean’ aspect of character that is still at work within contemporary responsibility-attribution practices.27 Thus, she asserts that, ‘Doctrinal mechanisms in modern criminal law are not, in short, absolutely decisive as between capacity- and character-based approaches to responsibility-attribution, which are driven rather by extra-doctrinal factors’.28
Lacey’s analysis of the ‘survival’ and ‘resurgence’ of character is an important consideration. Her account forces us to consider the reflexive relationship between doctrinal assumptions about criminal responsibility, and the social reality of the climate in which the rules of the criminal law operate. To support her claim, Lacey provides two stand-out examples – one of general application, and one gendered in impact – of why we cannot take for granted the theoretical claim that character has been expunged from contemporary criminal responsibility-attribution practices. First, she points to Part 11 of the Criminal Justice Act 2003 which, as she says, fundamentally changed the rules of admissibility of ‘bad character’ evidence in the English courts.29 Second – and of particular significance to the arguments set out below – Lacey says that:
the persistence of character-based judgements . . . might also help to account for the disproportionately high representation of multiply socially disadvantaged women in the courts and prisons of not only the late nineteenth century but also the late twentieth. Furthermore, the criminalization [sic] of prostitution constitutes a vivid example both of a survival of character-responsibility in criminal law itself and of the distinctive way in which sexuality continues to be implicated in social judgements of women’s character.30
26 Lacey (n 25) 61-64. 27 Lacey emphasises this point by drawing a vivid analogy between the development of criminal responsibility-attribution practices, and the story of Jekyll and Hyde. See Nicola Lacey, ‘Psychologising Jekyll, Demonising Hyde: The Strange Case of Criminal Responsibility’ (2010) 4 Criminal Law and Philosophy 109, and the discussion in chapter three, at pp 125-29. 28 Lacey (n 25) 151. 29 The Crown Prosecution Service’s policy in relation to character evidence is set out at
Therefore, whilst some would argue that by and large, the concept of character has been expelled from criminal responsibility-attribution, there is evidence to show that character remains a key consideration in certain areas of the criminal law. Moreover, given Lacey’s analysis above, not only is character still a feature of criminal responsibility-attribution practices more generally, but it can also impact disproportionately on women within the criminal law. Combining these two factors together, then potentially ‘character’ could negatively impact upon a female defendant. As such, in the next section I subject the female character of the criminal law to further theoretical scrutiny, in order to identify who she is, and how she is constructed within the criminal law.
3. Constructing the female character of the criminal law
Here I focus attention directly on the construction of the female subject as a 'character’ within the law in general, and the criminal law in particular. My aim in this section is to look beyond the conceptual analysis carried out in the previous chapter, and to assess the law from a more socially realistic, and distinctly gender-sensitive, perspective. In so doing the task is to identify and unmask the gendered norms that pertain to this female criminal character, so as ‘to bring theory back to life’,31 and to properly position the premenstrual defendant within this contextualised frame. It should be noted though, that in no way do I propose to inculcate a ‘grand theory’ of gender- or feminist-focused criminal responsibility in place of the existing conceptual framework, and thus to replace ‘one hierarchy of truth with another’.32 Rather, as Lacey does in relation to the concept of criminal responsibility itself, I adopt a position of ‘reflexive movement’33 across the various strands of theoretical discourse. The idea here is to assess not only, ‘what impact have ideas of responsibility had on women, but what impact has the idea of women, the idea of gender itself, had on the idea of responsibility?’34
31 Sara Ahmed, Living a Feminist Life (Duke University Press 2017) 10. 32 See further Carol Smart, Feminism and the Power of Law (Routledge 1989) 89. 33 Lacey (n 25) 202: ‘And this reflexive process must be sensitive both to change over time and to the need to craft classificatory regimes which can be applied flexibly so as to capture, not only differing degrees but different modalities of legalism’, ibid. 34 (emphasis original), Sharon Cowan, ‘In search of connections: Reading between the lines of Nicola Lacey’s In Search of Criminal Responsibility’ (2017) 4(2) Critical Analysis of Law 211, 217. 141
Feminist legal discourse on the issues raised here, has in modern times extended its reach far and wide, encompassing a vast array of different feminist ‘voices’. By necessity though, my treatment of the subject-matter of the female subject of the criminal law can only be partial, and so the discussion below may not do full justice to the variety of viewpoints on offer. Essentially, the aim of my analysis in the next section is to draw attention to the ‘curious’ fact that ‘gender, while figuring so centrally in the construction and organisation of social life across virtually all societies and civilizations [sic] is nevertheless barely visible in the conceptual armoury of the law’.35 What I present below then, is a sketch of the female character of the criminal law. And what emerges from this sketch, is a partly character-less, partly caricatured, female version of the rational agent who is central to the conception of criminal responsibility.36
Ideologically the law claims to be neutral, impartial and objective. As such, individuals are persons who are all ‘subjects to law’s empire’ and all persons are presumed to be equal before the law.37 Legal subjects can also be said to have certain legal ‘characteristics’ as well. That is to say that they are ‘deemed to act in certain ways, to wield certain rights and assume certain responsibilities’.38 This is true of the subject or agent of the criminal law who, as discussed in the previous chapter, not only occupies a central position within the operation of the law, but also serves to justify and rationalise the law because of the attributes that are accorded to them as a subject. Thus, the criminal law’s ‘legal subject is defined in terms of a certain set of cognitive capacities combined with the power to master the will, and hence to control one’s behaviour’.39 Accordingly, as Lacey suggests, ‘one might argue that the criminal legal subject is implicitly marked as masculine’.40
Traditionally then, ‘in the legal text . . . rationality and objectivity [are] ascribed to the male and emotionality and subjectivity [are] ascribed to the female’.41 Therefore, whilst
35 Joanne Conaghan, Law and Gender (OUP 2013) 5. 36 Ngaire Naffine, ‘Who Are Law’s Persons? From Cheshire Cats to Responsible Subjects’ (2003) 66 Modern Law Review 346. 37 Ronald Dworkin, Law’s Empire (Fontana 1986) vii. 38 Ibid. 39 Lacey (n 3) 111. 40 Ibid. 41 Sheila Duncan, ‘The mirror tells its tale: constructions of gender in criminal law” in Anne Bottomley (ed), Feminist Perspectives in the Foundational Subjects of Law (Cavendish Publishing 1996) 174. 142
the male subject is positioned as the rational agent of the criminal law, the female subject is constructed as the Other, and thereby not a full subject of the law. This assertion underpins the long-held feminist tenet that, contrary to any claim of equality in the eyes of the law, ‘gender is socially constructed as difference epistemologically’,42 and the female legal subject is undeniably a gendered construct.43 In addition, inherent within this gender construction is the feminist idea of a set of hierarchical power relationships that produces, sustains and enshrines in society, the idea of male supremacy and female subordination. In this way, the legal subject – and especially so the legal subject of the criminal law – is judged on a set of values that are associated with masculinity. Consequently, ‘femininity’ in any form often struggles to find a place. As Smart says, ‘when a man and woman stand before the law, it is not that the law fails to apply objective criteria when faced with the feminine subject, but precisely that it does apply objective criteria and these criteria are masculine’.44 For the purposes of representing themselves within this gendered construction – or rather, in order to tell their story to the court – those women who enter the criminal legal arena can either assume a masculine stereotype but risk being labelled and stigmatised as an ‘unnatural’ representation of the woman that they are supposed to be, or maintain their femininity, which in turn can efface their status as an agent of the law.
Smart argues also that this differential and oppositional bifurcation of male and female legal subjects is further complicated by the discursive gendered construct of a type of woman within the law.45 This type is differentiated not only from other women in general – because society tends to assume that women should not be engaged in deviant criminal behaviour at all – but also differentiated from the construction of the female subject as always being the other of the male subject. In this way, the female criminal ‘may be an abnormal woman because of her distance from other women, yet simultaneously she celebrates the natural difference between Woman and Man’.46 The gendered construction of both ‘woman’ and a particular ‘type’ of woman are symbiotic to each other, and ‘Woman represents a dualism as well as being one side of a binary distinction’.47
42 Catherine A Mackinnon, Feminism Unmodified (Harvard University Press 1987) 32. 43 Margaret Davies, ‘Taking the Inside Out: Sex and Gender in the Legal Subject’ in Naffine and Owens (n 6) 29. 44 Carol Smart, Law, Crime and Sexuality: Essays in Feminism (SAGE Publications Limited 1995) 189. 45 Ibid 193-94. 46 Ibid. 47 Ibid 194. 143
This gendered construction epitomises one aspect of the overarching ‘characterisation’ of the female subject of the law. The thrust of this argument would suggest that the law is gendered in a fairly fundamental way and that ‘gender is a crucial part of what law is or does’.48 Yet on the face of things, mainstream legal scholarship subscribes to the view that ‘gender plays little or no role in the conceptual make-up, normative grounding, or categorical ordering of law’.49 In this sense, there is a strong adherence to the proposition that the idea of law in the contemporary context ought to be ‘gender-independent’, and detached from the recognition of sex or gender difference between its subjects.50 Effectively then, as Conaghan says, ‘identifying the various ways in which gender acts upon and influences law is not the end of the matter. What is most interesting is that it consistently appears not to do so’.51 Pausing here briefly to take stock of the discussion so far, on the one hand, there seems to be an acknowledgement of gender such that it must be present in order for the law to be seen as striving to achieve gender-independence. But also, simultaneously, there is a dismissal of gender as being relevant, because in fact it was never relevant in the first place, and thus the law should strive to maintain this idea of gender-independence. In this fashion, the more we go in search of the female character of the criminal law, the more difficult it becomes to pin her down, as she moves in and out of view within the gaze of mainstream legal discourse.52 But why might this be so?
Conaghan argues that ‘time’ and temporality are heavily implicated in ‘the erasure of gender from legal exposition and analysis’.53 Firstly, and coalescing with some of the overarching socio-historic themes of this thesis, ‘temporal narration situates the deeply patriarchal legal past as the ‘before’ of the law; as no more than a tatty historical legal remnant which occasionally needs tidying up’.54 She cites as an example the case of R v R,55 which as any good law student will know, made it possible for a husband to be held criminally liable for the rape of his wife. This was the result of the House of Lords’ decision to remove a marital exemption that had existed previously as ‘a common law
48 Conaghan (n 35) 8. 49 Ibid. 50 Ibid. 51 Ibid 25. 52 Naffine argues that, ‘if we [then] consider what it has meant to be legally ‘she’, we find an historical person with almost no positive legal character and certainly little opportunity for legal agency’, Naffine (n 6) 173. 53 Conaghan (n 35) 113. 54 Ibid. 55 [1991] 2 WLR 1065. 144
fiction which [had] become anachronistic and offensive’.56 Widely lauded as a significant advancement for equality and a ‘win’ for modern justice, Conaghan suggests that the decision in R v R was notable also for revealing, ‘the extraordinary tenacity of a still deeply gendered legal and political system, a tenacity which goes unheeded as the legal broom sweeps briskly over the patriarchal cobwebs of the past’.57
The second and related way in which ‘time’ works to expunge gender as a legally significant classification is through the presentation of the law-gender relationship as a progressive teleological process, via which the law ‘works itself pure’.58 Conaghan argues that: Within the logic of the frame which encases the official story of law and gender, gender emerges as of little contemporary conceptual and theoretical significance but only because the framing of the problem of gender in historical terms shapes our expectations and directs our understanding in ways which ensure that we find gender only when we look for it in the prescribed form and according to the conventional account.59
History then, can sometimes act as a ‘narrative of gradual erosion’,60 of the ways in which gender is viewed as being relevant within mainstream legal discourse. But, to make matters even more complex, the story of sex and gender is often framed within the context of a general narrative of legal progress – encapsulated and writ large within the common law itself – which assumes that as we continually move forward, we leave the past behind. This aspect of the narrative, coupled with a tendency to read history retrospectively, and to judge it in respect of contemporary norms and standards, leads to the presumption that the present should surely always be able to overcome the limitations of the past. This is as true for the feminist legal narrative of sex and gender in the criminal law, as it is for any other form of discourse. Thus, within certain strands of feminist legal scholarship it
56 R v R (n 55) at 1073. 57 Conaghan (n 35) 113. Notably, the decision in R v R followed extensive consultation, policy review and parliamentary debate over the previous decade. Conaghan suggests that, ‘in other words, the ideas and beliefs underpinning the marital exemption clearly had some currency even at the time of its formal demise’, ibid. 58 Conaghan (n 35) 114. See further Robert W Gordon, ‘Critical Legal Histories’ (1984) 36 Stanford L Rev 57, 65. 59 Conaghan (n 35) 114. 60 Ibid. 145
is often asserted that, ‘contemporary feminist analysis significantly advances feminist theorizing [sic] by moving beyond the gender-essentialism of earlier generations’.61
Moreover, Lacey adds yet another layer of complexity to the constructive account of the female character of the criminal law. Primarily, she suggests that we should not take as read, the teleological assumption that women’s place in the contemporary criminal law is in fact an advancement. The way that she makes this argument is via her ‘alternative’ literary history of female criminality that she sets out in Women, Crime and Character.62 Using a series of female characters lifted from the pages of historical novels, Lacey assesses their narratives to identify the contemporary social views from the era in which the female character was created. Thus, she takes well-known figures from literature – like Moll Flanders and Tess of the D’Urbervilles – and uses them as analytical metaphors, to hypothesise about a different construction to the historical female characterisations of women within the criminal law.
Accordingly, Lacey argues that the female characters of criminal law have not always been viewed as ‘weak-minded or mad rather than bad: or when engaged in behaviour sufficiently subversive of conventional norms of femininity, as “doubly deviant”’.63 Taking Moll Flanders as her historical archetype,64 Lacey suggests that Defoe’s literary characterisation of Moll as ‘a thoroughly autonomous woman, brimming with agency and enterprise’,65 stands in stark contrast to our contemporary ideas about the female character of criminal law, who these days we consider to be ‘the ultimate stereotype of conventional femininity: passive rather than active; driven by emotion rather than reason; moved by impulses located in the body rather than the mind’.66 The conclusion Lacey draws is that, if Moll was a conceivable character of eighteenth century literature, then she could also have been a conceivable character in the courtrooms of the time as well.
61 Conaghan (n 35) 125 (emphasis original). This happens by way of a ‘narrative frame’ within which historical actors are always seen as having ‘fallen short of the goals and objectives which contemporary scholars attribute to their activities’, ibid. One example of this, Conaghan says, is the way in which the ‘story’ of feminist history has come to be viewed in ‘waves’, yet this ‘waves’ typology of increasing feminist advancements is ‘far from written in stone’, ibid 130. 62 Nicola Lacey, Women, Crime and Character: From Moll Flanders to Tess of the d’Urbervilles (OUP 2008). 63 Lacey (n 62) 3. 64 ‘Moll Flanders is, in short, a fully responsible subject, and the very antithesis of the frail, emotional, dominated woman one might have expected to find in a novel of its time’, Lacey (n 62) 4. 65 Ibid 3. 66 Ibid. 146
Whilst this is fiction and may not be an entirely objective narrative of the reality of contemporaneous criminal responsibility,67 Lacey’s metaphorical account still goes against the mainstream conception of the female character of the criminal law. For, much of modern discourse suggests that it is not autonomy and agency, but rather ‘an “absence of agency” that characterises the description of women’s crimes’.68 One can choose to view this aspect of Lacey’s argument either as a compelling critique, or an interesting historical and literary aside. That said though, elsewhere Lacey makes this same argument, but more directly – and perhaps more convincingly – by reference to the history of the criminal law itself:
[I]n . . . the nineteenth century . . . an idea of responsibility as founded in freedom and capacities, coinciding as it did with an increasingly medicalized [sic] view of female deviance and an understanding of women as less rational, more feeble-minded, less autonomous, less fully citizens - indeed less persons - than men, may have had the ironic consequence that women became less often subject to criminal justice controls.69
Thus, whichever perspective one adopts in relation to the development of the female character of the criminal law – for there are various interpretations about women’s agency, or lack of it, to be extracted from the scholarly analyses above – the ‘story’ of female criminal responsibility is presented as being somewhat different from the story that is told more generally about the mainstream doctrines of criminal responsibility and rational agency.
In addition, when we look closely enough, what we also find, is a construction or a variety of constructions, of the female character of the criminal law. The discussion set out above tells a complex, and often contradictory, tale about previous perceptions of female criminality and the construction of the female character of the criminal law. This is a character who has transgressed the norms of femininity and may be regarded as ‘doubly deviant’ for having done so. In one respect, she is a strong, independent character within the criminal law, but on the other hand, her status as a woman can mean that she is in fact perceived as lacking in status. Not only is this character the subject of theoretical
67 For example, it tells us nothing about how Defoe’s character was received in society at the time, or whether there was a ‘backlash’ against the idea of ‘Moll’ from existing patriarchal influences. 68 Hilary Allen, ‘Rendering Them Harmless: The Professional Portrayal of Women Charged with Serious Violent Crimes’ in Pat Carlen and Ann Worrall (eds), Gender, Crime and Criminal Justice (Open University Press 1987) 90. 69 Lacey (n 25) 57. 147
discourse, but she is also the central character in the various in-court and out-of-court stories that are told about female defendants. Frequently, this female character is most conspicuous in the stories that are told about her relationship with specific criminal law defences. And so, to find out more about who this character is, that is where I focus my attention in the next section.
4. Making excuses for the female characters within the criminal law
Arguably, before she even enters a courtroom, a female defendant has already been ‘judged’ on the basis of her female character. Whilst, ‘officially the legal subject is potentially anyone [and] this any personness of the legal person . . . is supposed to ensure that the law is at the disposal of us all, equally, without fear, favour or affection’,70 this objectivity does not always easily translate into the substantive operation of the law. In reality then, it is impossible to escape the fact that ‘gender stereotyping permeates every part of the criminal justice system’,71 or that gender expectations inevitably occupy judicial minds and jury decision-making, when it comes to individual cases.72 This is particularly apparent in relation to certain defences within the English criminal justice system, where gender can act – both explicitly and implicitly73 – to determine the outcome for a female defendant: In male cases, [there is] an assumption of an uncomplicated responsibility for criminal action . . . But the ambiguous concept of subjectivity that is invoked in female cases constantly threatens the link between legal and moral guilt.74
70 Ngaire Naffine, Law and the Sexes: Explorations in Feminist Jurisprudence (Allen and Unwin 1990) 148. 71 Neil Cobb and Anna Gausden, ‘Feminism, “Typical” Women, and Losing Control’ in Alan Reed and Michael Bohlander, Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (Routledge 2016). 72 See further, Anne M Coughlin, ‘Excusing Women’ (1994) 82 California Law Review 1; Deborah W Denno, ‘Gender, Crime, and the Criminal Law Defenses’ (1994) 85 Journal of Criminal Law and Criminology 80. 73 Explicitly in respect of infanticide; implicitly in relation to the partial the defence of diminished responsibility. 74 Hilary Allen, Justice Unbalanced: Gender, Psychiatry and Judicial Decisions (Open University Press 1987) 91. 148
This can of course work to the advantage of some women caught up in the criminal justice system, potentially leading to more lenient treatment for them in certain circumstances.75 Equally though, the perceived leniency in respect of individual defendants can be problematic in its own way. To elaborate further on this point, in the sections that follow I examine some of the English criminal law defences that potentially hold the most import and greatest significance for women within the criminal justice system.76 For the purposes of the discussion here, primarily these are the offence/defence of infanticide and the partial defence of diminished responsibility.77 Both these legal tools have something important to say about the relationship between law, gender and, in addition, medicine – demonstrating as they do, ‘the compromise between law and psychiatry . . . in the treatment of women in the criminal process’.78 Importantly, these defences also demonstrate the perceived tendency of the courts to pathologise women generally, and to take a more lenient approach to female criminals in certain circumstances.
i. Infanticide as a gender-specific defence
Within current law79 infanticide is set out in the Infanticide Act 1938. Section 1(1) creates an independent homicide offence of infanticide, and section 1(2) of the Act provides for the operation of infanticide as an alternative verdict when a defendant is charged with murder, or since 2009, manslaughter.80 Thus, infanticide acts so as to partially inculpate
75 Cortney A Franklin, ‘Women Offenders, Disparate Treatment, and Criminal Justice: A Theoretical, Historical, and Contemporary Overview’ (2008) 21(4) Criminal Justice Studies 341. 76 Denno identifies four types of ‘gender’ defence: gender-specific (e.g. infanticide); gender-dominant (e.g., a defence predicated on excessive levels of testosterone and causing increased female aggression); gender-variant (defence more applicable to one sex for reasons of biology or physiology); and gender- cultural (e.g. battered women’s syndrome), Denno (n 72) 124. 77 Given the gendered context, infanticide and diminished responsibility are the defences that are most relevant to the discussion in this chapter, cf insanity or automatism. Although both insanity and automatism have also been the subject of recent debate: Law Commission Discussion Paper, Criminal Liability: Insanity and Automatism (Law Commission 2013). 78 Alan Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (Cambridge University Press 2006) 264. 79 Preceded by the Infanticide Act 1922. For a detailed historical account, see Arlie Loughnan, ‘The “Strange” Case of the Infanticide Doctrine’ (2012) 32 Oxford Journal of Legal Studies 685. 80 Amended by section 57 of the Coroners and Justice Act 2009. Notably, this extends the reach of infanticide so that it may function as an alternative charge to a charge of either murder or manslaughter, and it may act as a partial defence to either of these offences. See discussion in Loughnan (n 79) 702. 149
and partially exculpate a woman who has killed her own child within twelve months of birth, if it can be shown that:
the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent on the birth of the child.81
Clearly, infanticide applies to women only,82 as the defence is predicated on the physiological processes either of giving birth, or lactation.83 The fact that female offenders are singled out for such individualised treatment in this way, is the result of a longstanding ‘special status’84 accorded to women who kill their infants. Whilst on the face of it, this would seem to present something of an anomaly within current criminal responsibility-attribution practices, in fact the implementation of a specific homicide offence for women was regarded – at the time of its creation in the early decades of the twentieth century – as ‘a legitimate and uncontroversial aspect of the law’.85 Historians suggest that infanticide as a social practice was in fact a familiar part of pre-modern and early modern life.86 The more recent legal and political impetus to place the practice on a statutory footing in the early decades of the twentieth century was due in part to a recognition of the socioeconomic stressors that could cause unmarried women to kill their unborn children, and also because illegitimate mothers and children were often the responsibility of their parish and put an additional strain on local poor rates.
Although recent cases demonstrate that the defence of infanticide is still in use today,87 there has been some critical scrutiny of the contemporary relevance of this ‘Janus-faced’88 offence/defence provision.89 Both academics and the judiciary have opined that, ‘The law
81 Infanticide Act 1938, s 1(1). 82 Emma Cunliffe, ‘Infanticide: Legislative History and Current Questions’ (2009) 55 Criminal Law Quarterly 94. 83 Allen (n 74) 27-28. 84 Loughnan (n 79) 702. 85 Ibid. 86 Ibid 689. 87 See for example, R v Kai-Whitewind [2005] EWCA Crim 1092. There were forty-nine reported cases of infanticide during the period 1990-2003, Law Commission, Murder, Manslaughter and Infanticide Law Com No 304 (Law Commission 2006) paras D.6 - D.20. 88 Loughnan (n 12) 226. 89 Law Commission, A New Homicide Act for England and Wales Law Com No 177 (Law Commission 2005) 177. 150
relating to infanticide is unsatisfactory and outdated’.90 As it currently stands, the intention behind the Act is to provide ‘a more compassionate route’91 and a more merciful outcome for a defendant who would otherwise be required to plead diminished responsibility. In the main, this is down to the fact that infanticide can avoid the additional distress and trauma that might be caused to a defendant as a result of facing an initial charge of murder or being convicted of voluntary manslaughter.
Overall in fact, the requirements for infanticide are in several respects less stringent than for the defence of diminished responsibility. On the one hand, there is no requirement that the defendant be suffering from a clinically recognised disorder.92 Neither is there a need for a causal link to be established between a defendant’s disturbed balance of mind and the killing of her child.93 Most cases tend to result from a guilty plea to the offence of infanticide and equally, in most cases this guilty plea is readily accepted if there is evidence of an emotional disturbance at the time of the offence.94 To this end, Loughnan comments that ‘a finding of partial responsibility for killing (whether in conviction for a charge or in the acceptance of a plea) flows straightforwardly from the construction of the act of infanticide as an instantiation of abnormality’.95 The conclusion frequently drawn is that a mother who kills her child must be suffering from an abnormality of mental functioning because no mother in her right mind would behave in such a way.96 Howard highlights the two dubious and controversial views that can result from this construction of infanticide, that ‘either the mother who kills her infant must be mad . . . or worse, all women who have recently given birth are mad’.97
90 per Judge LJ in Kai-Whitewind (n 87) 140. The Butler Committee made a recommendation for the abolition of infanticide in 1975: Home Office, Report of the Committee on Mentally Abnormal Offenders Cmnd 6244 (HMSO 1975) para 19.27. 91 Karen Brennan, ‘Beyond the Medical Model: A Rationale for Infanticide Legislation’ (2007) 58 Northern Ireland Legal Quarterly 505, 534. Also, Katherine O’Donovan, ‘The medicalisation of infanticide’ (1984) Crim LR 259. 92 Though ‘expert evidence about a defendant’s disturbed mental state seems to be a practical necessity for the doctrine of infanticide’, Loughnan (n 79) 705. 93 Allen (n 74) 27. 94 RD Mackay, ‘The consequences of killing very young children’ (1993) Crim LR 21. 95 Loughnan (n 79) 704. 96 Jennifer L Grossman, ‘Postpartum Psychosis – A Defense to Criminal Responsibility or Just Another Gimmick’ (1989) 67 University of Detroit Law Review 311. 97 Helen Howard, ‘The Offence/Defence of Infanticide: A View from Two Perspectives’ (2018) 82 The Journal of Criminal Law 470, 473. Also, Robina Ogle and Daniel Maier-Katkin, ‘A Rationale for Infanticide Laws’ (1993) Criminal Law Review 903, 904. 151
Loughnan elaborates on these points in a greater level of detail. First, she examines the relationship between the requirement that the defendant’s mind be ‘disturbed’, and the actus reus of infanticide.98 Importantly, the only connection required is one of temporality. There is no specification that the disturbance of a woman’s mind must cause her to kill her child.99 On Loughnan’s account, this ‘suggests that infanticide exculpates via an implicit assumption that the defendant’s actus reus for killing is caused or determined behaviour’.100 This follows from Walker’s earlier analysis, that the relationship operates so as to create ‘a “virtual presumption” that the woman actor was not fully responsible by reason of mental illness’.101 MacKay refers to this aspect as ‘the unique feature of infanticide’.102 In effect then, as Loughnan suggests, this ‘virtual presumption’ works to foreclose the question of the defendant’s responsibility for the offence. And by foreclosing the question in this way, it is ‘decreed’ that the infanticidal woman’s criminal responsibility is thereby vitiated. Importantly, on this reading of the operation of infanticide, ‘the infanticidal woman’s partial responsibility dovetails with the generalized [sic] social construction of an infanticidal type’.103 This then obviates the need for any individualised inquiries into the defendant’s state of mind and her mental capacities at the time of the offence. Simply by embodying her actions and behaviour within her status as an infanticidal type, the law makes an assumption about her as a female ‘character’ and her presumed inherent ‘characteristics’ as such. Thus, as Loughnan says, this is how a finding of partial responsibility can flow so straightforwardly from the way in which the offence/defence of infanticide is constructed.104
Other points to note from the infanticide provision include the fact that, because the physiological processes involved are of a temporary nature, then the disturbance that the infanticidal woman experiences so too is temporary and the result of a time-bound
98 Additionally, the mens rea requirement of infanticide is not made clear on the face of the statutory provision. But, in R v Gore (Lisa Therese) (Deceased) [2007] EWCA Crim 2789 (CA), the Court of Appeal determined that the inclusion of the phrase ‘wilful’ in the 1938 Act was wide enough to cover both intent and recklessness, therefore a more inclusive mens rea than that for the offence of murder. 99 Allen (n 74) 27. 100 Loughnan (n 79) 703-04. 101 Nigel Walker, Crime and Insanity in England (Vol 1: The Historical Perspective) (Edinburgh University Press 1968) 135. As Walker suggests, with infanticide ‘the law more or less invites us to treat her as having done [the killing] in an abnormal state of mind’, ibid 136. 102 RD Mackay, Mental Condition Defences in the Criminal Law (OUP 1995) 211. 103 Loughnan (n 79) 704. 104 Ibid. 152
condition.105 This link to the mother’s physiology and the killing of her infant itself raises additional problems. This is because, in effect, the reason for the disturbance of the defendant’s mind is the factor of childbirth – a process that is for women, at the same time both exceptional, and yet innately unexceptional.106 Allen argues that this aspect of infanticide makes it unstable as a practical defence, because it can either act to ‘shore up or undercut’107 the ascription of responsibility in individual circumstances – depending on the view taken by the legal decision-maker in a particular instance. This means that a court may view a defendant’s plea of infanticide as being more natural and understandable because of her circumstances as a woman, or they may view it as fundamentally more evil because of her circumstances as a woman, and also a mother. In this respect then, the court’s decision might turn on the available medical testimony. And, although there is no specific stipulation that the defendant provides evidence of a recognised medical condition, frequently a defendant will choose to rely on some form of expert medical evidence. Therefore, MacKay has deemed this aspect to be of ‘vital’ significance in determining how an infanticide plea progresses in the courts.108
On the one hand, it has been argued that there should be a more considered rationale to the gender-specific infanticide provision.109 On the other, some commentators have called for its abolition, suggesting that the proposal of the Law Commission for a defence of ‘not criminally responsible by reason of recognised medical condition’110 could be a suitable option in its absence.111 Alternatively, it has been suggested that infanticide could be subsumed within the current diminished responsibility provision. Admittedly though, ‘this can only be done by pushing the bounds of this defence beyond its already stretched position’.112
The final point to make here is that whatever the future may hold for infanticide, it is clear that the construction of the provision itself tells us something very specific about the
105 Loughnan (n 79) 704-05. 106 Allen suggests that this conjures up two contradictory views: that a mother killing her child is either ‘unthinkable’ or ‘natural’, Allen (n 74) 28. 107 Ibid 50. 108 Law Commission (n 87) D.25. 109 Ibid para 1.70. 110 Howard (n 97). Proposal set out in full in Law Commission Discussion Paper, Criminal Liability: Insanity and Automatism (Law Commission 2013). 111 Howard (n 97). 112 Donald Nicolson, ‘What the Law Giveth, It Also Taketh Away’ in Nicolson and Bibbings (n 1) 178. 153
substantive operation of the criminal law in respect of some of the female characters who become caught up in its machinations. In light of the discussion above, it is clear that infanticide is premised as much upon assumptions about the female defendant as a particular type of person, as it is upon the disturbed mind of that defendant.113 Thus, the particular type – or character – of ‘the infanticidal woman’ has come, not only to describe, but also to help determine, the issue of her liability. The question of her criminal responsibility rests in part upon her female character.
ii. Diminished responsibility as a ‘gendered’ defence
Diminished responsibility is not a gender-specific defence114 but the way in which it has in the past been interpreted for female characters of the criminal law makes it worthy of some further discussion here. At the outset of this thesis, I referred in brief to the problematic nature of diminished responsibility as a defence that emphasises, and seeks to rely on, notions of victimhood in relation to female defendants in particular.115 Here, I set out the defence in more detail and explore its gendered impact as a possible strategic counter-narrative for those female defendants who seek to rely on it as a partially exculpatory legal mechanism.
The ‘anomalous’116defence of diminished responsibility has long been ‘an easy target for critics’,117 ever since it was first introduced under section 2 of the Homicide Act 1957.118 Recent reform of the defence,119 whilst being specifically geared towards trying to
113 The lack of a causal link requirement between a mother’s disturbed mind and the killing of her child, is particularly notable in this respect. 114 Arguably, it could be classed as a ‘gender-cultural’ defence, Denno (n 72). 115 As referred to in chapter one, at pp 55-56. 116 Herbert Fingarette, ‘Diminished Mental Capacity as a Criminal Law Defence’ (1974) 37 Modern Law Review 264, 274. 117 PR Glazebrook, ‘Dealing with Mentally Disordered Offenders’ (1976) 35 The Cambridge Law Journal 9. For examples, see Richard F Sparks, ‘Diminished Responsibility in Theory and Practice’ (1964) 27 Modern Law Review 9; Edward Griew, ‘Reducing Murder to Manslaughter: Whose Job?’ (1986) 12 J Med E 18; Edward Griew ‘The Future of Diminished Responsibility’ (1988) Criminal Law Review 75, 81-82. 118 For a thorough historical account of the events led to this statutory development, see Loughnan (n 12) ch 9. 119 Prior to this there had been several moves towards reform: for example, in the Butler Report (n 90). See also, Fourteenth Report of the Criminal Law Revision Committee on Offences Against the Person, Cmnd 7844 (1980) 93; Law Commission Partial Defences to Murder Law Com 290 (Law Commission 2004); Law Commission No 304 (n 87). 154
‘improve its clarity, fairness and effectiveness’,120 has in fact led to further debate about the structure, scope and anticipated ‘success’ of the diminished responsibility provision.121 Under the original definition, the defence stipulated two basic essential requirements in order for a defendant to bring a successful plea of diminished responsibility. First, the defendant must have been suffering from an ‘abnormality of mind’, and secondly, the abnormality of mind must have ‘substantially impaired their mental responsibility for the killing’. Over the years, this first incarnation of the defence was consistently interpreted in such a way as to bring within its ambit a wide array of mental health conditions122 – including, the premenstrual syndrome.123 Not without its merits, this benevolent interpretation of the provision was termed a ‘benign conspiracy’124 between courts and clinicians, that worked to ensure justice was done in relation to some of the more vulnerable defendants who sought to take advantage of the provision.125
In some cases though, the application of the defence entailed a ‘stretching’ of the ‘abnormality of mind’ provision.126 Increasingly, the defence was used to allow a court to show leniency to a ‘highly stressed killer’.127 Thus, if the source of a defendant’s stress could be pathologised and categorised by medical experts as an abnormality of mind, this could attract a finding of manslaughter for a defendant in lieu of their murder conviction. Because of this, and paralleling in part the gendered nature of infanticide, in recent decades, diminished responsibility had become something of a ‘safe haven’ for women in particular. This trend was made most apparent in several prominent domestic violence cases from the 1990’s. Defendants in controversial cases such as R v Ahluwalia128 and R
120 Coroners and Justice Act 2009, Explanatory Notes, 14. 121 See further, RD Mackay, ‘The New Diminished Responsibility Plea: More than Mere Modernisation?’; Rudi Fortson QC, ‘The Modern Partial Defence of Diminished Responsibility’ in Ben Livings, Alan Reed and Nicola Wake, Mental Condition Defences and the Criminal Justice System: Perspectives from Law and Medicine (Cambridge Scholars Publishing 2015). 122 Including ‘mercy killings’, Griew (1988) (n 117) 79-80. Also, RD Mackay, ‘The abnormality of mind factor in diminished responsibility (1999) Criminal Law Review 117. 123 R v Craddock 1 Current Law Jan 1981 49; (1982) CLR 531; R v English (unreported) Norwich Crown Court, 10/11/1981; R v Reynolds [1988] Crim LR 679. As discussed in chapter one at pp 24-30. 124 Law Commission (n 119) Law Com No 290, para 2.34. 125 Oliver Quick and Celia Wells, ‘Getting tough with defences’ (2006) Criminal Law Review 514, 520. 126 Louise Kennefick, ‘Introducing a New Diminished Responsibility Defence for England and Wales’ (2011) 74 Modern Law Review 750, 758 at n 47. 127 Ian Dennis, ‘Adjusting the boundaries of murder: Partial defences and complicity’ (2008) 11 Criminal Law Review 829, 830. 128 [1992] 4 All ER 889. 155
v Thornton129 – both involving ‘battered women’s syndrome’130 – sought to rely on the diminished responsibility defence to avoid the mandatory life sentence for murder. Viewed by some as a compassionate response, and by others as a patronising one, the defence gradually became implicitly associated with a number of high-profile female defendants. Thus, although it offered a defendant the opportunity of benefiting from a ‘mitigatory plea of diminished responsibility [that] permits a general blurring of the line between psychiatric diagnosis and legal compassion’,131 often the female defendant who sought to use it was characterised as, ‘unreasonable, abnormal [and] the result of mental malady’.132
These decisions also acted as a prompt for the Government to seek a review of the operation and ambit of diminished responsibility. In 2003 the then Home Secretary David Blunkett requested that the Law Commission consider the law relating to the partial defences to murder, in the particular context of domestic violence. In 2004 the Law Commission produced its report on Partial Defences to Murder.133 The crux of the Commission’s findings was that, as long as the offence of murder carried a mandatory sentence of life imprisonment, then a defence of diminished responsibility under the Homicide Act 1957 should be retained. In addition, the Commission proposed that it would be more appropriate to postpone any reform of diminished responsibility until after a thorough review of the entire law relating to murder had been conducted. In a later development, the Law Commission published its 2006 report on Murder, Manslaughter and Infanticide, in which, amongst a series of other proposals, it recommended that the definition of diminished responsibility be modernised in order to make it clearer and to bring it into line with contemporary developments in expert diagnostic practice.134
The consultation procedure eventually resulted in several amendments to the defence of diminished responsibility, set out in section 52 of the Coroners and Justice Act 2009,
129 [1992] 1 All ER 306. For a recent case example, see R v Challen [2019] EWCA Crim 916. 130 Mary Donnnelly, ‘Battered women who kill and the criminal law defences’ (1993) 3 Irish Criminal Law Journal 161. 131 Norrie (n 78) 266. Also, Barry Mitchell, ‘Putting diminished responsibility law into practice: a forensic psychiatric perspective’ (1997) 8 Journal of Forensic Psychiatry 620. 132 Fiona E Raitt and M Suzanne Zeedyk, The Implicit Relation of Psychology and Law: Women and Syndrome Evidence (Routledge 2000) 85. 133 Law Commission (n 119) Law Com No 290. 134 Law Commission (n 87) Law Com No 304, para 5.107. 156
which replaced the wording of section 2(1) of the Homicide Act 1957. The updated provision introduces a revised partial defence based on ‘an abnormality of mental functioning’,135 that arises from a ‘recognised medical condition’136 which ‘substantially impairs’ the defendant’s abilities of cognition, rationality and/or self-control.137 Additionally, there is a causation requirement which ensures an appropriate connection between the defendant’s abnormality of mental functioning and the killing.138 Overall, the modernised defence is viewed as imposing a more stringent set of requirements on those who might seek to plead it. For example, the term ‘recognised medical condition’ might have the potential effect of narrowing the defence of diminished responsibility by excluding those disorders where there is no clear-cut clinical definition or a lack of medical consensus.139 Moreover, with the inclusion of a new requirement of a causal link, this might pose a potential stumbling-block for a number of defendants, given the difficulties inherent in proving a connection between their criminal conduct and an abnormality of mental functioning.140
In terms of its application to female defendants in particular, first it is worth saying something about the operation of the diminished responsibility defence for those women who seek to plead it in relation to ‘battered women’s syndrome’. Given that this is classified as a recognised medical condition, then the defence would be available if the defendant was able to satisfy the criteria set out in section 52. However, alongside the new provision of diminished responsibility, the Coroners and Justice Act 2009 also introduced a defence of loss of control.141 This provision replaced the previous common law defence of provocation and was in part aimed at remedying the situation of the abused woman – although, whether it has successfully done so still remains unclear. The gendered operation of the defence raises issues of its own in any event.142 That is not my
135 s 52(1). Rather than an ‘abnormality of mind’. 136 s 52(1)(a). 137 s 1A. 138 s 1B. 139 Previously there was also some ambiguity as to the term ‘substantially impaired’, now clarified by the decision in R v Golds [2016] UKSC 61. 140 William Wilson, ‘The structure of criminal homicide’ (2006) Criminal Law Review, 471, 483. Wilson discusses this point in relation to the Law Commission’s definition, but the point is also applicable to section 52 of the Coroners and Justice Act 2009. 141 Coroners and Justice Act 2009, ss 52-54. 142 As discussed in (n 71) Cobb and Gausden. 157
precise focus here though, and so I shift the attention back onto diminished responsibility, for there is still something to be said here about how this partial defence operates.
In particular, there is something to be gleaned from studying the gendered nature of the defence’s operation.143 Based partly on the discussion above, and partly on analysis elsewhere,144 it can be argued that diminished responsibility is a distinctly gendered legal tool – at least in application, if not design.145 This assertion draws on the discussion in an earlier chapter as to how gender can operate so as to position the female defendant as a ‘victim’ – of circumstance perhaps, or more frequently, because of the perception of her own inherent weakness and biological inferiority.146 Therefore, whilst commentators like Allen acknowledge that this can sometimes work successfully as a strategic counter- narrative in court,147 it also has the damaging consequence that:
The image of the female sex as passive, ineffectual, unstable and irresponsible is a familiar target for criticism by feminists . . . [who] . . . have long recognized [sic] that the privileges and exemptions that such conceptions may allow are bought at the expense of making legal invalids of women, of excluding them from their full status as legal subject, and of perpetuating their social and legal subordination.148
Thus, whatever ‘gains’ there are to be had in employing the defence of diminished responsibility in the individual case, there are still considered to be substantial ‘losses’ caused in respect of the female defendant’s individual agency,149 and their status within the wider social group.150 Diminished responsibility then, is part of a bigger picture wherein the psychologisation of female behaviour provides the conditions also for the naturalisation of a certain type of female criminal character. Rather than being held fully criminally responsible, the law allows for a form of subterfuge, as the female defendant’s
143 Ania Wilczynski, ‘Mad or Bad? Child-Killers, Gender and the Courts’ (1997) 37 British Journal of Criminology 419. 144 As discussed in chapter one, at pp 54-56. 145 Bell and Fox (n 9) 480. 146 Cate Hemingway, ‘Boxing Women: Regulation, Women and Mental Health’ (1995) 2 Cardozo Women’s L J 109. 147 Allen (n 68) 81-82. 148 Ibid 90. 149 John Gardner, ‘The Mark of Responsibility’ (2003) 23 Oxford Journal of Legal Studies 157, 161. 150 Nicolson refers to a study from 1974 which suggests that most female offenders would prefer to be labelled ‘bad’ rather than ‘mad’: J Camp, Holloway Prison, (David and Charles 1974) 154, cited in Nicolson (n 112) 172 at n 64. 158
crime ‘is rewritten as a mere event in nature, a natural disaster in whose devastation the offender has simply been swept away, without either volition or responsibility’.151
Arguably, this medicalisation, therapeutisation and naturalisation process itself has a number of additional ramifications. Nicolson suggests several potential detrimental consequences for the female defendant. First, it allows the courts to ignore non-medical explanations for women’s crime, for example socio-economic factors or other background issues relevant to the defendant.152 In addition, treating women in this way could be viewed as patronising. Certainly, it acts to reinforce longstanding notions of the link between gender and madness, the assumption that a woman who commits a crime must be either ‘mad or bad’, and the stigmatising stereotypes which result from these characterisations.153 Arguably also, the medical professionals involved in a criminal case are ‘likely to supplant, rather than supplement, the voice of female defendants’.154 In this way then, diminished responsibility can itself attenuate the story that a female defendant is trying to tell about herself, as her ‘life-history script’ is written for her by the ‘professionals and medical experts within, and behind the scenes of the courtroom’.155 This is despite ‘the time-honoured argument that, because the principles of law and psychiatry are based on opposing paradigms, they cannot work together’.156 Moreover, with the revised diminished responsibility provision now in place, the definition of ‘recognised medical condition’ has been narrowed to such an extent that it could potentially exclude anything that ‘cannot be squeezed into a classification’.157
By way of a conclusion to this section then, I would argue that the operation of the diminished responsibility defence is relevant to the idea of a female character of the criminal law, albeit in a less explicit fashion than the offence/defence of infanticide.
151 Allen (n 68) 85. 152 In the case of the premenstrual defendant Christine English for example, there was evidence of an abusive relationship between the defendant and the lover she killed, yet the court never took this into consideration, English (n 123). 153 Nicolson (n 112) 170-71. 154 Ibid 171. 155 Lorraine Radford, ‘Pleading for Time - Justice for Battered Women Who Kill’ in H Birch (ed), Moving Targets: Women, Murder and Representation (Virago Press Limited 1993) 195. 156 Kennefick (n 126) 765. 157 Ibid. Although the Ministry of Justice have made it clear that the phrase ‘recognised medical condition’ is not ‘[l]imited to recognised mental disorders’, RD MacKay, ‘The Coroners and Justice Act 2009 – Partial Defences to Murder (2): The new diminished responsibility plea (2010) 4 Criminal Law Review 290, 294. 159
Despite relatively recent reform, there is still a need for a more considered rationale to the diminished responsibility defence, given that ‘the partial defences [to murder] do not have defensible definitions or a rational structure’.158 Recently, there have been calls for a better formulation of the theoretical rationale for the defence of diminished responsibility.159 In addition, it has been argued that its remit should be extended to cover a wider range of offences than just murder.160 This raises the possibility of a revised conception of diminished responsibility for those who commit a lesser crime, but find themselves without a suitable defence161 – a point that I pick up again in chapter five.
5. The premenstrual defendant as a female character
From the outset, my aim in this chapter has been to establish how the narrative that surrounds the female character of the criminal law might help to define a new normative direction for her in particular, and for criminal responsibility-attribution practices in general. Here I posit a few thoughts on what the analysis set out above suggests to me so far. The overarching conclusion that I take from the discussion here is that ‘a gendered understanding of criminal law and justice has yet to be fully realised’.162 And, taking this as the jumping off point for the question of whether the law could incorporate a gender- specific defence for the premenstrual defendant, then it would seem that this pessimistic conjecture does not offer much in the way of hope for her.
Clearly, the concepts of sex and gender have a significant effect on the way in which law and society characterises the woman of law in general, and the specific ‘stories’ of female criminal defendants in particular. Firstly, ‘even the application of formally neutral criminal law rules and standards and practices ostensibly favouring women may lead to subtle double standards and the circulation of harmful gender stereotypes’.163 Secondly,
158 Law Commission (n 87) Law Com No 304, 1.70. 159 Helen Howard, ‘Diminished Responsibility, Culpability and Moral Agency: The Importance of Distinguishing the Terms’ in Livings, Reed and Wake (n 121) 322. 160 Ibid 337. 161 On a similar basis to Morse’s proposal for a generic plea of ‘guilty but partially responsible’ within the American jurisdiction, Stephen J Morse, ‘Diminished Rationality, Diminished Responsibility’ (2003) 1 Ohio State Journal of Criminal Law 289. Discussed in more detail in chapter five. 162 Howard (n 97) 480. 163 Nicolson (n 1) 17. 160
as Wells counsels, ‘Stories create stereotypes and stereotypes create stories’.164 Linking together these notions of character, characterisations, types and stereotypes, there is almost no getting away from the fact that there is a female character in the criminal law. Arguably then, there is an overlap of ideas about sex/gender, and the more mainstream idea of ‘character’ – although in general this overlap does not tend to be explicitly acknowledged.
As set out in the previous chapter, the idea of character traverses a broad ideological spectrum: from the idea of manifest criminality,165 to suggestions of ‘bad character’,166 and the notion that a defendant might act ‘out of character’.167 I would add to this another important consideration for the contemporary criminal law – the idea of female character.168 Arguably, this form of character has not disappeared from the criminal law, in the same way that other ideas of character are generally regarded as having lost their ideological grip on responsibility-attribution practices, and been subsumed by notions of capacity instead.169 In a sense then, the female character of the criminal law is all- pervading and ever-present, both theoretically and substantively. To make any advancement, this proposition needs first to be acknowledged and articulated much more transparently within mainstream scholarship and substantive legal practices, in order to highlight the fact that ‘character’ continues to be ‘everywhere but nowhere’ for the female defendant.
In addition, both explicitly and implicitly, the criminal law plays a significant role in gender construction. Not only is this a feature of positive law in the partial offence/defence of infanticide, but it can also occur in the perpetuation of double-standard gender stereotypes inherent within the operation of the diminished responsibility defence. Both the legal construction of women’s offending, and the construction of women as gendered legal subjects can result in a female defendant being subjected to a ‘trial by character’. In addition, the characterisation of her that takes place in the courtroom can
164 Celia Wells, ‘Provocation: The Case for Abolition’ in Andrew Ashworth and Barry Mitchell, Rethinking English Homicide Law (OUP 2000) 102. 165 George P Fletcher, Rethinking Criminal Law (OUP 2000) 88-90. 166 Crown Prosecution Service (n 29), re ‘Bad Character Evidence’. 167 RA Duff, ‘Choice, Character, and Criminal Liability’ (1993) 12 Law and Philosophy 345. 168 By analogy, Lacey has also identified this female character in the historical literary context and made the argument that this stands in for her embodiment within the criminal law. 169 Although Lacey argues against this proposition, Lacey (n 27). 161
often vary, depending on which stereotypical female character the judge or jury believes the defendant to be. Is she constructed as a bad character, who has not only committed a crime but also transgressed society’s ideals of femininity? Or is she an innately good character, who appears to possess characteristics that accord with feminist ideals, but who could not help her actions because of her pathology? According to the standard story, she is either one or the other – but rarely anything in-between.
Arguably, this was the view that the courts took in relation to some of the premenstrual defendants who have formed the subjects of this thesis. In fact, nowhere is the idea of a female character of the criminal law more apparent than in the trial of Nicola Owen – The PMS case that made legal history.170 I close this chapter with a narrative review of her case, to demonstrate this point and to highlight more discernibly how a defence based on ‘character’ is a defence that is built on faulty foundations, and a construction that is potentially inherently unstable for female defendants in particular. Although Owen’s case has already been discussed in chapter one, I return to her story again here, in order to highlight a key point. This is the fact that Owen did not have a suitable defence upon which to rely in the circumstances. Instead, the lenient outcome of her case appears to have rested on a degree of luck and the compassionate nature of the sentencing judge in her particular case.
Nicola Owen set fire to her parents’ house, on two separate occasions. On the first occasion in 1978, prior to there being any indication that she was suffering from premenstrual syndrome, she plead guilty to arson. Based on a psychiatric report which concluded that Owen was suffering from ‘a personality disorder of considerable severity with hysterical features’,171 she was released from remand and sentenced to a probationary period of two years, on condition of psychiatric supervision – with the trial judge in that first case stating, ‘I am satisfied that you were very emotionally upset at the time you committed arson’.172 Soon after, her mental state having shown little sign of improvement, Owen again set fire to the home where she lived with her family, breaking the rules of her probation. In 1979 she appeared before the Old Bailey, charged with three
170 Nicola Owen and Sydney Higgins, Nicola: The PMS case that made legal history (Corgi 1993). 171 Ibid 162. 172 Ibid 163. 162
separate counts of arson, endangering life, and intent to kill her mother.173 Whilst on remand in Holloway Prison, Owen attempted suicide and as a result she was placed in a psychiatric unit, with a recommendation that she be transferred to Broadmoor. In the interim period, her family had speculated about the nature of her condition and conducted further research as to its potential cause. Based on their findings, they sought the advice of Dr Katherina Dalton, who submitted her medical opinion to the court that Owen was suffering from severe premenstrual syndrome. In the circumstances though, and given the charges on the indictment, it seems that Owen was faced with no other option than to plead guilty.174 It is unclear why counsel advised her to make this plea, rather than focusing on a specific defence such as insanity for example, but according to Owen’s personal biography, defence counsel did enter a written submission, to the effect that:
the accused cannot be held responsible for her actions at that time because she was suffering from a severe mental disorder. This mental disorder was not psychiatric but had as its cause a medical illness that had not been diagnosed as such at the time when the offences were committed. This medical illness has subsequently been diagnosed and is susceptible to treatment. This illness has been described as premenstrual syndrome.175
The judge appears to have dealt with Owen’s case swiftly, authoritatively – and arguably, in a distinctly unorthodox manner. Accepting the medical evidence of Dalton and two other clinicians, the trial judge declared the treatment which Owen had received to be a ‘miracle’.176 Then, as Owen stood in the dock, he addressed her individually, saying, ‘The court’s sole concern is to help you. Doctors have recently given you the most spectacular treatment . . . Nicola Jane Owen, you may go free from this court!’
Of course, it should be remembered that this description of the sentencing proceedings is taken from Owen’s biography. Thus, it is unclear whether the sense of ‘courtroom drama’ within this narrative has been added to create additional suspense for the reader of the text, or indeed if this is an accurate representation of the benevolence of the court on this occasion. One thing is clear though. Whilst Owen had walked into court as a defendant who had no other option but to plead guilty to her crimes, having been advised that she
173 Owen and Higgins (n 170) 166. 174 To arson and endangering life. Accepting that there had been no intent to kill her mother, the police withdrew this charge. 175 Owen and Higgins (n 170) 277. At that time, progesterone therapy was still considered to be a potentially viable treatment for premenstrual syndrome. 176 Ibid 279. 163
might face a prison sentence of anything up to twelve years, she walked out as a free woman. By medicalising Owen’s behaviour and using her premenstrual syndrome to explain her deviance, the court appears to have focused on her as a victim of her circumstances. Thinking back once again to the ideas about how the narratives of female defendants can play out in the courtroom – as discussed in chapter one – potentially this demonstrates Allen’s point about how a female defendant can sometimes be portrayed as ‘a helpless and pitiful victim, to whom society owes all manner of compensatory benefits’.177 Arguably, this also underscores the additional difficulties that are inherent to any trial where the female character is at issue.
Owen’s story then, serves to pinpoint and draw attention to the complex mix of elements in a case such as this – where the law, medicine and gender are forced to come together in a somewhat ambiguous and uncertain union. Accordingly, her case highlights the inherent difficulties with a premenstrual defence per se. This is because any premenstrual defence that was proposed would need to be built on the notion of a gender-specific defence, full stop. But as the discussion presented here has highlighted:
the question of whether female defendants are leniently, but patronisingly, treated as mad or harshly treated as bad depends on a judgement not so much of their actions, but of their character and the extent to which it accords with social constructions of femininity. A similar process is likely to occur in all cases involving female-specific defences.178
Given the apparent intractability of this issue, then I would argue that it is inappropriate to propose, or to attempt to construct, a new defence based on the premenstrual defendant’s sex or gender. Therefore, on this basis, I would reject the idea of a gender- specific premenstrual defence – at this present time. In which case, I now need to turn my attention elsewhere, to answer the overarching research question of whether the premenstrual defendant should be held fully responsible for her criminal actions. And that is my objective in the next and final chapter in this story: to evaluate the possibility of a new legal defence mechanism that the next ‘Nicola Owen’ might be able to make use of and so, to construct a new legal history for the premenstrual defendant of the future.
177 H Allen, ‘Rendering Them Harmless: The Professional Portrayal of Women Charged with Serious Violent Crimes’ in Pat Carlen and Anne Worrall (eds), Gender, Crime and Justice (Open University 1987) 81-82. 178 (emphasis added) Nicolson (n 112) 172. 164
CHAPTER FIVE
RE-CONCEPTUALISING CRIMINAL RESPONSIBILITY: THE CASE FOR ‘MITIGATED CRIMINAL LIABILITY’
‘Conviction’ – in the legal sense – results from the conviction created in those who judge the story.1
1. A new ending to the premenstrual defendant’s story?
This thesis throughout has been concerned with the stories that are told about the premenstrual defendant. In this last chapter I continue with this theme, in order to assess how her story should be told so as to ensure that those who judge her story are provided with the appropriate legal tool to find her not fully responsible for her crime, if that is the conclusion that they come to in her case. This idea is set out in my proposed re- conceptualisation of the premenstrual defendant’s criminal responsibility, as one of ‘mitigated criminal liability’. This is a new type of partial defence that has not previously been recognised by English law and which involves a form of substantive mitigation that has a distinctive effect on a defendant’s liability. Modelled in part on the rationales, ideas and concepts that pertain to what could be called the doctrine of partial responsibility,2 this new heading of partial liability also represents a significant departure from current doctrinal practices, in that it allows a defendant to plead that they were not fully responsible for their criminal actions – whatever their crime might be.
It seems useful to briefly recap what has been accomplished up until now in this re-telling of the premenstrual defendant’s story. So far, I have explored the feminist legal narrative
1 Peter Brooks, ‘Narrative Transactions – Does the Law Need a Narratology’ (2006) 18 Yale Journal of Law and the Humanities 1, 25. 2 Set within the context of existing scholarly support for a re-evaluation of the doctrine of partial responsibility. Discussed in Stephen J Morse, ‘Diminished Rationality, Diminished Responsibility’ (2003) 1 Ohio State Journal of Criminal Law 289; Sally E Gore, ‘Raging hormones and excuses: female-specific syndromes and criminal (non-) responsibility’
165
account of her situation by telling her ‘true story’.3 I have also deconstructed the master narrative within which her story is set – that being the doctrine of criminal responsibility.4 And I have assessed how the narrative about her female character within the criminal law can help us to draw normative conclusions about her status within it.5 All of this has helped to contextualise the debate regarding the research questions that I set out at the start of this thesis: (1) should the premenstrual defendant be held fully responsible in law for the crime that she has committed, and (2) if not, should she be entitled to rely upon her premenstrual disorder as a legally recognised excusatory factor in the commission of her crime? Here, as this thesis draws to a close and we near the end of the premenstrual defendant’s story, my aim in this chapter is to answer these questions more directly, and to suggest that there is scope within the existing framework of the criminal law to accommodate her needs and to allow a new finding for her, of ‘mitigated criminal liability’.
The arguments that I make in this chapter are structured as follows. First, I set out the normative justification for my proposal, based on the proposition that the feminist legal narrative project undertaken in this thesis has highlighted how the current legal position of the premenstrual defendant ought not to be as it currently is.6 Second – and once again taking Lacey as my theoretical lead – I assess the existing arguments for extending the current remit of the partial defences of English criminal law.7 This part of the analysis is focused specifically on determining whether a proposed plea of mitigated criminal liability should be grounded in ideas of capacity or character. In the section that follows, I lay the foundation for the suggestion that it would be feasible to base a new finding of partial responsibility on the idea of ‘mitigation’ – and in fact, why this is a more appropriate suggestion than extending the existing partial defences to incorporate such a
3 In chapters one and two. 4 In chapter three. 5 In chapter four. 6 As Conaghan says, ‘feminist scholarship, particularly in law, tends to be fuelled by an idea that things ought not to be as they currently are and that feminist theoretical engagement can play a role in envisioning how they might be’, Joanne Conaghan, ‘Reassessing the Feminist Theoretical Project 1 in Law’ (2000) 27 Journal of Law and Society 351, 375. 7 Nicola Lacey, ‘Partial Defences to Homicide: Questions of Power and Principle in Imperfect and Less Imperfect Worlds . . .’ in Andrew Ashworth and Barry Mitchell, Rethinking English Homicide Law (OUP 2000). 166
plea.8 Then, to close this chapter, I sketch an outline of what a defence of mitigated criminal liability might look like.
All the analysis here is driven by an implicit momentum which stems from the idea that, generally women struggle to find a space within the law to tell their own stories. As Graycar asserts, frequently a female defendant’s experiences will require significant restructuring in order to fit into the existing legal framework of the substantive criminal law – often in such a way that the story being told can lose all personal significance to her.9 I would argue that the premenstrual defendant is a paradigmatic example of how this can happen within the confines of the English law’s criminal responsibility-attribution practices. As such, it is worth exploring whether there is a better way to tell her story within the existing framework of the criminal law and that is what I undertake in this chapter.
2. Why should we excuse the premenstrual defendant?
As Conaghan says, ‘Feminist scholarship is, of necessity, a normative project’.10 It is driven, not only by a concern with describing or interpreting society and social arrangements, but also with the aim of suggesting and seeking to transform those social arrangements which are deemed to disadvantage women in particular.11 In addition, Conaghan says, this feminist striving for transformation tends to be derived from ‘an intuitive recognition’ of the necessity for normative change.12 Thus, it is possible to say that much of feminist legal theory – including feminist legal narrative scholarship – is based upon, and driven by, the premise that ‘we belong to a society . . . in which women are and have been subordinated to men and that life would be better . . . if that were not the case’.13 In the context of this thesis, it is possible to say that the feminist legal narrative
8 Given that the existing partial defences are complicated by the current structure of the homicide offences and the mandatory life sentence for murder under English law. 9 Regina Graycar, ‘Telling Tales: Legal Stories about Violence against Women’ (1996) 7 Australian Feminist Law Journal 296, 300. 10 Lacey (n 7) 375. 11 Ibid. 12 Ibid (emphasis original). 13 C Dalton ‘Where We Stand: Observations on the Situation of Feminist Legal Thought’ (1998) Berkley Women’s Law J 1, 2. 167
project I have undertaken here is driven by the transformative aspiration of seeking to challenge the discursive and substantive constructions of the premenstrual defendant within the criminal law, and also of re-imagining an alternative set of arrangements for making decisions about her criminal responsibility. Fundamentally then, this project is ‘fuelled by an idea that things ought not to be as they currently are, and that feminist theoretical engagement can play a role in envisioning how they might be’.14 As Denise Réaume says:
A feminist critique of law is, negatively, an analysis of how some or all women have been excluded from the design of the legal system or the application of law, and positively a normative argument about how, if at all, women’s inclusion can be accomplished.15
Hence, the intuitive normativity of feminist legal work lays the foundation for the propositions that I put forward in this chapter. I appreciate though that there may be inherent theoretical complexities and aligned socio-political ‘risks’16 to a Laceyan- inspired process of ‘normative reconstruction’17 of the premenstrual defendant’s criminal responsibility. Hence, the claims and proposals that I make here are suggested with one eye on Conaghan’s caution that, ‘Our efforts can only ever be tentative, temporal, situated and subject to revision’.18 And so, it is with this proviso in mind that I make my arguments for criminal law reform in relation to the premenstrual defendant – in a speculative and situated fashion, but on the basis that the proposals which I suggest are indeed normatively necessary.
There is a further feminist-orientated argument which has helped to shape the concept of ‘mitigated criminal liability’ that I set out in this chapter. Once again this is something that is predicated on a Laceyan analysis of the operation of the criminal law – and it is this which, in effect, has helped to guide the approach that I have taken in assessing the potential of the concept of mitigation. This stems from Lacey’s suggestion that, to provide a fully developed analysis of the criminal law – and of the role of criminal law in
14 (emphasis original) Conaghan (n 6) 375. 15 Denise G Réaume, ‘What’s Distinctive about Feminist Analysis of Law?: A Conceptual Analysis of Women’s Exclusion from Law’ (1996) 2 Legal Theory 265, 273. 16 Conaghan (n 6) 382. 17 The phrase ‘normative reconstruction’ is originally Lacey’s: Nicola Lacey, ‘Normative Reconstruction in Socio-Legal Theory’ (1996) 5(2) Social and Legal Studies 131. 18 Conaghan (n 6) 382. 168
constituting sexual difference – then we need also to address what she terms to be the necessary components of the interpretive and enforcement contexts of the criminal law.19 To this end, Lacey argues that we should move beyond the fascination with legal doctrine per se, and instead re-position our focus on the ‘key feature of criminal law as a system of substantive judgement of human conduct’.20 According to Lacey, this requires that we take an all-encompassing view of each stage of the criminal law’s decision-making process – from prosecution, right through to the sentencing stage – as all are key indicators of the criminal law’s evaluation of conduct, and all add to our understanding of how the criminal law addresses the sexual difference of those who come before it. As she says then, ‘It might be argued that one of the most urgent items on a feminist criminal law reform agenda would be the reception of factors, currently regarded as relevant at the sentencing stage, into the framework for determining liability’.21 Lacey does not elaborate on how in fact this might be achieved. Arguably though, this serves as a suitable starting point for my consideration of why the concept of mitigation that is in play during the sentencing stage of proceedings is an important – yet significantly under-estimated and under-researched – concept within the criminal justice system overall, and why it could prove a fruitful avenue of scholarly exploration in relation to the premenstrual defendant.
This provides part of the formulative rationale for the way in which I have approached my re-conceptualisation of the premenstrual defendant’s criminal responsibility. For, Lacey’s exhortation to move beyond the framework of the current criminal responsibility- attribution practices has encouraged me to think outside the confines of the established excusatory mechanisms of the criminal law. This goes back also to a discussion in the very first chapter of this thesis, whereby in the absence of a suitable defence for the premenstrual defendant, one theorist, Osborne, was minded to suggest that ‘the solution, perhaps, is not to work within the confines of the existing criminal justice system’, but ‘to be creative’.22 Thus, as McArthur also says, ‘If traditional legal doctrine cannot accommodate [a woman’s] symptoms, and yet, it appears that within her symptoms she lacked the necessary intent, then it would be just to adapt traditional legal doctrine to
19 For example, the existing pre-trial and sentencing procedures. Discussed further in Nicola Lacey, In Search of Criminal Responsibility: Ideas, Interests and Institutions (OUP 2016) 61-64. 20 Nicola Lacey, ‘General Principles of Criminal Law? A Feminist View’ in Donald Nicolson and Lois Bibbings (eds), Feminist Perspectives on Criminal Law (Cavendish Publishing 2000) 99. 21 Ibid. 22 Judith A Osborne, ‘Perspectives on Premenstrual Syndrome: Women, Law and Medicine’ (1989) 8 Canadian Journal of Family Law 171, 179. 169
reflect this fact’.23 Admittedly, both of these are comments that were made in relation to the proposal for a new premenstrual defence per se – a proposal that I rejected in chapter four. However, the impetus for change that underpins these propositions remains the same. That is, the premenstrual defendant should not be held fully responsible for her criminal actions and she should have at her disposal an appropriate legal defence mechanism.
All the analysis above builds towards the answer to the first of my research questions: should the premenstrual defendant be held fully responsible in law for a crime that she has committed? There is in addition, one other factor to be taken account of here. Arguably, this is in truth the most fundamental component to this thesis. And that is the narrative of the premenstrual defendant herself. All along, this has been a story about the premenstrual defendant – individuals like Nicola Owen,24 who might find themselves in court on a criminal charge for which they have no obvious and suitable defence to their actions. Effectively then, it is the story of these women that provides the moral impetus for attempting to re-conceptualise the premenstrual defendant’s criminal liability. In essence, the story itself is the most convincing reason as to why the answer to the question above should be ‘no, the premenstrual defendant should not be held fully responsible for the crime that she has committed’. Because otherwise, in failing to seek a remedy to the situation for premenstrual defendants like Owen, then arguably, the criminal law is sanctioning the full conviction and stigmatisation of a defendant who is potentially morally blameless, or at the very least, less blameworthy. Not only does this have serious implications for the premenstrual defendant herself, but it also undermines the legitimacy of the criminal justice system overall. This then is where I turn my attention to the second of my research questions: should the premenstrual defendant be entitled to rely upon her premenstrual disorder as a legally recognised excusatory factor in the commission of her crime? My answer to this question is ‘yes’, she should have a legal excuse which recognises that she should not be held fully responsible.25 The issue then is not ‘why should we’ excuse the premenstrual defendant, it is rather ‘why we should’. The next
23 Karen M McArthur, ‘Through Her Looking Glass: PMS on Trial’ (1989) 47 University of Toronto Faculty of Law Review 825, 861. 24 Nicola Owen and Sydney Higgins, Nicola: The PMS case that made legal history (Corgi 1993). 25 In fact, some premenstrual defendants may be deemed to be not responsible for their actions at all. Therefore, whilst my focus in this thesis is on a suitable partial defence, I acknowledge also that there needs to be a corollary full defence available for her – discussed below at pp 176-78. 170
natural step is to assess how to formulate a suitable legal excuse for her – and that is what I set out to do below.
3. Rationalising why we should excuse the premenstrual defendant
In this section I examine the general rationale that underpins the exculpatory factors which are already taken account of within the criminal law.26 Assessing the bases for the existing defences in this way provides an overview of the current legal landscape. It also allows for an assessment of how to rationalise the idea of ‘mitigated criminal liability’ that I propose for the premenstrual defendant. Thus, the analysis in this section will help to establish whether a finding of ‘mitigated criminal liability’ should be rationalised by advertence to an individual’s capacity, or their character. Considering the difficulties that are inherent to the concept of the ‘female character’ within the criminal law,27 then common sense might dictate that fundamentally, a responsibility-attribution decision of this type should be predicated on a capacity-based assessment. However, as is set out below, the potentially controversial nature of a character-based rationale has not prevented a discussion about how character might be taken into account as part of a person’s criminal defence.28 Therefore, in the interests of presenting a complete picture, I also assess this as an idea, before going on to dismiss it as an inappropriate framework for the premenstrual defendant. Within my consideration of the existing rationales for capacity- and character-based defences, I include also an assessment of those reform proposals that might have an impact on this debate – for example, the Law Commission’s recent work on the defences of insanity, automatism, and a new defence of ‘not criminally responsible by reason of recognised medical condition’.29
26 See generally, RD Mackay, Mental Condition Defences in the Criminal Law (Clarendon Press 1995); Alec Buchanan, Psychiatric Aspects of Justification, Excuse and Mitigation (Jessica Kingsley Publishers 2000). 27 As discussed in chapter four. 28 GR Sullivan, ‘Making Excuses’ in AP Simester and ATH Smith (eds), Harm and Culpability (OUP 1996). Sullivan’s character-based proposal is discussed in more detail below. 29 Law Commission Discussion Paper, Criminal Liability: Insanity and Automatism (Law Commission 2013). Discussed in David Ormerod, ‘The Law Commission’s Proposals for the Reform of the Defences of Insanity and Automatism’ (2015) 55 Medicine, Science and the Law 156. 171
The format of the discussion below is predicated in part on that set out by Lacey in her consideration of an extension to the range of currently available partial defences.30 However, whilst I borrow from the structure of her hypothesis, there are several points of departure between my proposals and her arguments. For one, Lacey’s suggestions for extending the current partial defences system relates only to the offence of murder and the possibility of alternative partial defences based on excuses such as duress of circumstances or threats, excessive force in self-defence, and mercy killing. My proposal differs in that I press for a new form of partial defence/partial responsibility – that of ‘mitigated criminal liability’. Moreover, my main argument is that this form of partial defence/partial responsibility would be available to all offences, not just that of murder. That said though, Lacey’s analysis is helpful on two counts. The first is the fact that she considers it feasible to conceive of an extension to the range of existing partial defences, in the first place. The second is because of the way in which she frames this discussion in relation to the theoretical overlap between the processes of regulating, grading and labelling an individual’s liability within the criminal law.31 As Lacey points out, there is a ‘widespread tendency in English criminal law to allocate grading issues to the sentencing stage of the criminal process, where judgements can be fine-tuned to accord with social and moral, as well as legal, standards’.32 The argument that I present in this chapter is that there should be scope at the responsibility-attribution stage of criminal proceedings for judgements to be ‘fine-tuned’. The way in which I propose this could be achieved is by the introduction of a new partial responsibility defence which is predicated on the concept of mitigation being drawn into the responsibility-attribution stage of criminal proceedings to a greater extent than it is at present. Arguably, partial responsibility and mitigation are both important factors in the premenstrual defendant’s story, because they present fair and proportionate options for a defendant who has only partially lost capacity and is therefore deemed to be accountable – to a degree. Therefore, combining these concepts in the way that I do below allows for the ‘fine-tuning’ of current criminal responsibility-attribution practices to allow for the fact that a premenstrual defendant may not be fully responsible for her criminal actions.
30 Lacey (n 7) 114-19. 31 Ibid 108. 32 Ibid. 172
i. A capacity-based rationale
Legal excuses33 that are grounded in notions of ‘capacity’ relate to the idea that generally, the attribution of criminal responsibility should be blocked if an individual does not have the relevant cognitive or volitional capacities to have exercised a choice over their actions, or to have had a fair opportunity to do other than they did in the circumstances. As Hart has said, ‘unless a man has the capacity and a fair opportunity or chance to adjust his behaviour to the law its penalties ought not to be applied to him’.34 Excuses then are based on a set of circumstances which significantly impact upon the scope of a defendant’s capacity to choose how to act or to control their conduct. The relevant questions for a court that is charged with assessing a defendant’s legal excuse are as follows then: the types of mental disorders that should block an attribution of criminal responsibility, the balance to be struck between the medical and legal criteria that should be applied to the nature of the excuse, and the extent to which an individual’s capacity has been affected in the circumstances. These issues need to be considered alongside other more practical considerations relating to medical evidence and the appropriate disposal of the individual in question.
As set out in chapter three,35 the Hartian capacity-based and subjectivist view of criminal responsibility, and its corresponding impact on the nature of criminal defences, has for a long time been considered the pre-eminent imperative behind the criminal responsibility- attribution decisions of the courts. The rationale for the presumed superiority of the capacity approach to criminal excuses is understandable. For one, it acknowledges the rational agency of the subjects of the criminal law. It is also underpinned by the concept of fairness in that it is only correct to hold people to account when they had the capacity for rational action. And in addition, in most instances there is the advantage of being able to provide forensic proof of an individual’s capacity, in the form of expert medical evidence that a court can assess. Therefore, in principle at least, an assessment of capacity
33 As opposed to justifications. Lacey describes the difference as being that ‘justifying defences mark out conduct which criminal law does not regard as wrongful, excuses rather mark out situations in which the internal or external conditions under which a defendant acts are such as to displace – partly or completely – the attribution of responsibility for the admittedly wrongful act’, Lacey (n 7) 114. The literature on justification and excuse is, as Lacey says, ‘enormous’, Lacey (n 7) 114. 34 HLA Hart, Punishment and Responsibility: Essays in the Philosophy of Law (2nd edn, OUP 2008) 181. 35 At pp 108-12. 173
provides a sound underpinning for a defence, because it has the potential to be proven, or disproven in court.
The specific legal provisions that relate to capacity – and those which might also have a bearing on the premenstrual defendant’s criminal responsibility – are most obviously insanity,36 as a full defence, and diminished responsibility, as a partial one.37 However, as Lacey suggests, both of these defences can be distinguished on the basis that they constitute not excuses, but legal exemptions,38 or more correctly in the case of diminished responsibility, a partial exemption. Thus, a defendant who pleads insanity is not so much pleading that they should be excused from criminal responsibility, as arguing that they were not capable of acting responsibly in the circumstances. In addition, given its anomalous status in English law as a partial defence, somebody who argues for a defence of diminished responsibility is saying that they should be entitled to a partial exemption, on the basis that they were not capable of acting with full responsibility because they were suffering from an abnormality of mental functioning at the time of the killing. As such, these ‘exemptions are in a deep sense capacity-based’.39 Here then, I ask: is a capacity- based approach the model that should be used to ground a new defence of ‘mitigated criminal responsibility’ for the premenstrual defendant?
Fundamentally, there are strong grounds to argue for a capacity-based rationale to the proposed partial defence of ‘mitigated criminal liability’. As the Law Commission stated in their recent Discussion Paper, ‘it is unjust to hold people criminally responsible when they could not have avoided committing the alleged crime, through no fault of their own’.40 Therefore, ‘a person should be exempted from criminal responsibility if he or she totally lacked capacity to conform to the relevant law’.41 I would suggest though, that there may be some disadvantages to this type of capacity-based approach to the concept of ‘mitigated criminal responsibility’, particularly if the capacity-based rationale for this
36 The requirements of insanity are as follows: ‘to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong’, M’Naghten’s Case (1843) 10 Clark and Finnelly 200, 210, (1843) 8 ER 718 [1843-60] All ER Rep 229. 37 Coroners and Justice Act 2009, s 52. 38 Lacey (n 7) 119. 39 Ibid. 40 Law Commission (n 29) para 1.20. 41 Ibid. 174
was one that was strictly formulated. As such I would raise several concerns. The first argument against a strict capacity-based formulation is made on principled grounds, the second for practical reasons, and the third is made in light of the Law Commission’s recent reform proposals referred to above.
Regarding the first concern, I borrow an example used by Gardner to illustrate the relevant point.42 This is something that he speaks about in relation to the idea – or misconception, as he calls it – that it is against our interests to be responsible for our actions. In his account of this misconception, Gardner sends us back to the 1990’s, directing us to ‘a string of legally problematic and politically controversial cases concerning the scope of the provocation defence as it was then available to a number of women victims of domestic violence who killed their abusers’.43 These cases are well-known and oft-cited, for a number of reasons. To Gardner though, they are important because they illustrate the fact that, for some of these women, there had been available to them at the time, a choice between pleading the defence of provocation44 and the defence of diminished responsibility.45 As he points out, the result of a successful plea of either defence would have been the same – to substitute a murder verdict for a manslaughter verdict. And, in terms of ‘getting them off the hook’ for the consequential responsibility of their killings, then diminished responsibility would have been the easier option of the two for some of the defendants. However, as Gardner also says, what these women in fact wanted was to plead the defence of provocation. According to those who campaigned on their behalf, the reason for this was because of the formulation of diminished responsibility as a partial exemption that results from a defendant’s lack of capacity. Thus, ‘by making use of the diminished responsibility defence [a defendant] demeans herself as a rational being’.46 On this view, one could make a similar argument in relation to the premenstrual defendant. To employ a defence of ‘mitigated criminal liability’ that is predicated on a lack of capacity – either full or partial – could be demeaning to her as an otherwise rational human being. Arguably, in seeking to establish a principled approach to a new defence for the premenstrual defendant, then a defence which is seen to further undermine her
42 John Gardner, ‘The Mark of Responsibility’ (2003) 23 Oxford Journal of Legal Studies 157. 43 Ibid 159. He cites the following cases as examples: R v Thornton [1992] 1 All ER 306; R v Ahluwahlia [1992] 4 All ER 859; R v Humphreys [1995] 4 All ER 1008; R v Thornton (No 2) [1996] 2 All ER 1023. 44 At common law. 45 Homicide Act 1957, s 2. 46 Gardner (n 42) 160. 175
capacity could be viewed as a mistake.47 At first glance therefore, I would argue that it is worth exploring alternative options, rather than attempting to ground a defence of ‘mitigated criminal liability’ on a strict capacity-based approach.
The second issue in relation to a capacity-based defence of ‘mitigated criminal liability’ is due to the way in which a court is asked to practically assess a person’s individual capacity. As Lacey says, the ‘difficulty inherent in such assessments is illustrated by the unevenness with which expert testimony is used in cases, for example, of diminished responsibility . . . and by the difficulty which courts find in assessing such evidence’.48 Arguably, given the uncertainty that still surrounds the premenstrual disorders,49 this could add another complicating element to a capacity-based approach. As set out in an earlier chapter, there is still a degree of scientific uncertainty in relation to the premenstrual disorders, including the lack of a conclusive diagnostic test. If the rationale underpinning a defence of ‘mitigated criminal liability’ was to be based solely on a capacity-based rationale, and if this was applied strictly, then this could cause additional difficulties. On the one hand, a premenstrual defendant may have problems in establishing that her premenstrual disorder had resulted in her lack of capacity, and on the other, a court may find it challenging to reach a conclusion about the degree to which a particular defendant’s capacity had been affected by her premenstrual disorder. Arguably then, applying a strict lack of capacity-based rationale would only result in a disproportionately onerous test for the defence of ‘mitigated criminal liability’. This is something that is reflected also in the last issue that I address below.
Here, I review the current proposals for reform and how these relate to my idea of ‘mitigated criminal liability’. In recent years, the Law Commission has undertaken a wide-ranging review of the status of mentally disordered individuals within the criminal justice system. Acknowledging that the law in this area is outmoded and arguably in need of significant reform, they have examined two distinct but implicitly connected issues. The first relating to the position of an accused person who was suffering from a mental
47 Lacey and Pickard make a set of similar arguments about the rehabilitative benefits of attributing moral agency to mentally disordered offenders, Nicola Lacey and Hanna Pickard, ‘From the Consulting Room to the Court Room? Taking the Clinical Model of Responsibility Without Blame into the Legal Realm’ (2013) 33 Oxford Journal of Legal Studies 1. 48 Lacey (n 7) 116. 49 As discussed in chapter two. 176
disorder at the time that they committed their offence and who therefore seeks to rely on a defence of insanity or automatism.50 The second issue relates to the accused who is mentally disordered at the time of their criminal proceedings, and is concerned with their potential unfitness to plead.51 The first issue is that which is of most concern in assessing the potential criminal responsibility of the premenstrual defendant and so I concentrate on this aspect, leaving aside the issue of unfitness to plead.
In the light of their review of the defences of insanity and automatism, in 2013 the Law Commission proposed a new statutory criminal defence for those defendants who commit a crime, but can argue that at the time of so doing, they were suffering from a recognised medical condition – either physical, or relating to their mental health – which resulted in a total lack of capacity on their part.52 This defence would be one of ‘not criminally responsible by reason of recognised medical condition’.53 Part of the rationale underpinning the defence is that it should not be restricted, for example in the same way that diminished responsibility is restricted to murder, and so would be made available in relation to any kind of offence.54 In addition, the defence would not be tied to the seriousness of a particular criminal charge and would therefore be available to defendants in both the Crown Court, and in the magistrates’ courts.55 The concept of ‘recognised medical condition’ in this context would be an issue to be interpreted and decided upon by the court as a matter of law,56 but would require evidence from at least two experts.57 The finding for a defendant who was able to avail themselves of this defence would be a special verdict of ‘not criminally responsible by reason of recognised medical condition’,58 and the potential disposal options available to the court would be a supervision order, a hospital order or an absolute discharge.59
50 Law Commission (n 29). 51 Law Commission, Unfitness to Plead Law Com No 364, Vol 1: Report and Vol 2: Draft Legislation (Law Commission 2016). 52 Law Commission (n 29) para 1.87. 53 Ibid. 54 Ibid para 1.95. 55 Ibid. 56 Ibid para 1.88. 57 Ibid para 1.93. 58 Ibid para 1.87. 59 Ibid para 1.106. 177
Arguably, on the face of it, the defence would be an eminently suitable option for the premenstrual defendant to plead, were the government to follow the Law Commission’s recommendations and to set out such a defence in statutory form. However, there is one issue relating to the proposed new defence that raises some doubt as to its suitability for the premenstrual defendant. It is predicated on a total lack of capacity.60 Whilst the rationale for this aspect of the Law Commission’s proposal is an understandable one, I would argue that the need for a premenstrual defendant to demonstrate that she wholly lacked capacity at the time of her offence may be an overly onerous requirement. In fact, it may be doubtful that this would be reflective of the premenstrual defendant’s circumstances in a significant majority of instances. Admittedly, there will be some cases where a premenstrual defendant might be able to argue that her premenstrual disorder was so severe, and affected her to such an extent, that she wholly lacked capacity at the time that she suffered from the symptoms of the condition. However, I would argue that there is reason to doubt that this would apply in all circumstances.
Thus, I am not convinced that the Law Commission’s proposal for a new defence of ‘not criminally responsible by reason of recognised medical condition’ – at least in the format set out above – would be a viable solution for all premenstrual defendants. That said, I do concede that this type of capacity-based approach could potentially provide the basis for a finding of ‘mitigated criminal liability’, if it were to be based on a revised proposal that, for example, related to a defendant retaining a form of partial capacity, rather than a total lack of capacity. As the defence currently stands though, the Law Commission have made it explicit that ‘mere impaired capacity, even substantially impaired capacity would not be enough for the defence to succeed’.61 The defence would not apply if a defendant simply found it ‘difficult’ to form a rational judgement, understand the wrongfulness of their conduct or control their physical actions.62 This, I would argue, could be a factor that might make it difficult for a premenstrual defendant to plead the defence. Whilst this is not proposed as a final solution to the issue then, arguably it does open up an avenue for further debate. Potentially, the defence of ‘mitigated criminal
60 Law Commission (n 29) para 1.93. A defendant must wholly lack the capacity to (i) rationally to form a judgment about the relevant conduct or circumstances; (ii) to understand the wrongfulness of what he or she is charged with having done; or (iii) to control his or her physical acts in relation to the relevant conduct or circumstances, as a result of a qualifying recognised medical condition. 61 Law Commission (n 29) para 1.87. 62 Ibid paras 1.93-94. 178
liability’ could be implemented in addition to the Law Commission’s proposals – and also, in line with much of the existing framework as it is set out above. One significant benefit to this approach would be the work already undertaken by the Law Commission, which itself would be relevant to the concept of ‘mitigated criminal liability’. Not only would this provide a solid substantive foundation on which to ground a separate proposal for a finding of ‘mitigated criminal liability’, but arguably many of the suggestions set out in the Discussion Paper could be translated relatively straightforwardly into an aligned finding of ‘mitigated criminal liability’. The only additional work needing to be undertaken would be in relation to the concept of mitigation per se – for example, how to derive a satisfactory standard of liability from this idea, and how this might be assessed by the court. These are issues that I assess below.
ii. A character-based rationale
At first sight, the idea of a ‘character-based rationale’ to the defence of ‘mitigated criminal liability’ might set alarm bells ringing. However, in her own consideration of the potential extension of the partial defences, Lacey touches upon the issue of character, albeit in a tangential way63 – hence the reason for my inclusion of ‘character’ in the discussion that follows. Lacey’s treatment of ‘character’ comes within her articulation of what she terms a ‘reasons view’ of defences. On a ‘reasons view’, ‘the rationale of defences, whether focused on act, actor, or agent-relative conduct, is to provide for a more sensitive evaluation of the defendant’s conduct than is generally captured in offence definitions alone’.64 This ‘reasons view’, Lacey says, sits in direct contrast to exemptions like insanity and diminished responsibility. Thus, going back to Gardner’s comparison of the relative merits of the provocation and diminished responsibility defences in the domestic abuse cases of recent decades, the ‘reasons view’ provides the explanation for why these women preferred the defence of provocation over the alternative of diminished responsibility. They wanted the opportunity to explain and account for themselves by reference to their ‘reason’ for carrying out the killing in their contextualised circumstances. Accordingly, it is generally said that reasons-based defences mark out the subjects of the criminal law who have ‘acted on reasons which are approved within the
63 Lacey (n 7) 117. 64 Ibid. 179
range which would be expected of a normal, socially responsible person, or acted in a way which manifests no disposition to resist or violate the norms or values protected by criminal law’.65
As Lacey points out though, one controversial feature of the reasons view of defences is that it can imply – or as she says, it can frequently claim explicitly – that the courts are in fact engaged in making evaluative judgements about a defendant’s character, not a defendant’s capacity. Here though, she says that we need to be clear about the very specific way in which character is being employed within the relative reasons-based defences of the criminal law. Lacey states that, ‘The focus, crucially, is upon the quality of the attitude manifested in the defendant’s conduct, evaluated in the light of (a generous interpretation of) the context in which it occurred’.66 In this way then, the defendant’s character as a person is not being judged wholesale, but judged rather in a more contextualised and evaluative manner. Therefore, a defendant who acts in accordance with a reason, or a set of reasons, which is consistent with the attitudes and norms of society, can be exonerated and absolved of liability on this basis. Lacey herself uses the rationale behind this reasons-based view of defences, in order to formulate her own arguments about extending the remit of the partial defences.67
This is not something that I intend to pursue here though. Given the earlier discussion in chapter four, about the way in which women often undergo a gendered ‘trial of character’ in the criminal courts, then I would suggest that a character-based defence of ‘mitigated criminal liability’ would not be a viable or welcome proposition at this time. And so, I shall move on. As a brief recap to the discussion above though, thus far I have examined the possibility of grounding a defence of ‘mitigated criminal liability’ in a purely capacity-based assessment of a defendant’s criminal responsibility, or as part of an assessment of what might be classed as the defendant’s character simpliciter. Lacey identifies also ‘a troubling third category’ of situations, which she calls ‘situations of blocked evaluation’68 and which she links back to a separate proposition from Sullivan, regarding his idea for a defence based on ‘a temporary lapse of character’.69 Here, I shall
65 Lacey (n 7) 117-18. 66 Ibid 119 (emphasis original). 67 Ibid. 68 Ibid. 69 Ibid 122. 180
spend a little time elaborating on, and assessing the implications of, Sullivan’s proposal. Whilst this is a suggestion that ultimately, I reject because of the ‘character’ component to his proposal, in other respects it represents an intriguing proposition that is worthy of some further analysis.
Sullivan proposes a very specific defence for one particular class of defendant.70 He identifies this person as the subject of the criminal law who commits an offence because of a criminal ‘lapse of character’ – itself the product of a set of exceptional circumstances which ‘destabilised’ the agent’s capacity.71 Even though this agent’s circumstances are such that they do not accord absolutely with the standard categories of exemption or exculpatory reason-based defences of the criminal law, according to Sullivan, ‘the criminal law should make some provision for [those] persons whose conduct satisfies the grounds of inculpation but who have acted in a state of destabilization [sic]’.72 To illustrate the potential remit of this defence, Sullivan refers us to the now familiar, if not notorious, cases of Kingston73and R v T74 – two cases where the defendants involved were each in a state of non-culpable destabilisation at the time of their crime.75 Interestingly, he suggests an alternative response to both of these cases – one that would involve ‘conjoining the notion of lapse from good character with circumstances of destabilization [sic] but for which the agent would not have done what [they] did’.76 In effect then, what
70 The gist of the proposed excuse is based on the ‘involuntarily intoxicated’ defendant. But, as Sullivan suggests, ‘If a solution . . . can be contrived for cases of involuntary intoxication, why cannot the ideas informing it be more widely deployed?’, Sullivan (n 28) 132. 71 Sullivan (n 28) 144. 72 Ibid 149. 73 Kingston [1994] 3 All ER 353 (HL); [1993] 4 All ER 373 (CA). Kingston was a known homosexual with paedophiliac tendencies. He was surreptitiously drugged and, in a subsequent state of disinhibition, encouraged to engage in a sexual act with a minor. The House of Lords concluded that he still had the mens rea for the crime of indecent assault, and his disinhibited state could only be taken into account in mitigation. 74 R v T [1990] Criminal LR 256. T committed a violent robbery three days after having been raped. The court allowed her defence of automatism on the grounds that she had been suffering from post- traumatic stress disorder (PTSD) at the time of her crime. Her plea was allowed, despite the fact that, as Sullivan says, her actions were goal-orientated and she had the capacity to respond to fast-moving events, Sullivan (n 28) 139. 75 Discussed further in Jeremy Horder, ‘Pleading Involuntary Lack of Capacity’ (1993) 52 The Cambridge Law Journal 298; KJM Smith and William Wilson, ‘Impaired Voluntariness and Criminal Responsibility: Reworking Hart’s Theory of Excuses - the English Judicial Response’ (1993) 13 Oxford Journal of Legal Studies 69. 76 Sullivan (n 28) 151. 181
Sullivan argues for here is that ‘a combination of previous good character and exceptional circumstances of disequilibrium should ground an excuse’,77 in certain circumstances.
Let us deal first with the – arguably more challenging – ‘character’ aspect of this proposal. As discussed in an earlier chapter, generally character is not explicitly used in relation to responsibility-attribution decisions,78 although ‘there is a “thin” account of character that is widely employed in the criminal law in the sphere of evidence and sentencing practice’.79 This particular conception of character relates directly to a defendant’s previous criminal record80 and it is this ‘thin’ account of character that is most important here. In order to employ the defence proposed above, Sullivan says that the defendant should be somebody who is of ‘good character’, meaning simply that he or she has no relevant previous convictions. Thus, on Sullivan’s account, the assessment of a defendant’s past criminality or non-criminality, would be central to his suggestion set out above.81 Arguably, this is the most problematic aspect of the proposal. Not only does this raise issues in relation to the potentially arbitrary way in which we evaluate ‘character’ in general, but the operation of the defence would mean that those who had committed previous offences would be unable to plead this as an excuse. Thinking about the idea more pragmatically, this would mean that those offenders who commit multiple offences because of their own recurring destabilisations would be precluded from the defence, as being unable to point to their ‘good character’ due to their previous convictions. However, for a number of defendants, their previous convictions may in fact be the result of the recurring destabilisation. Certainly, this would preclude some of the premenstrual defendants referred to in chapter one – for example, Nicola Owen and Sandie Craddock/Smith – from being able to plead this as a defence. On this basis – and bearing in mind also, the still inherently gendered implications of assessments of character in the criminal courts – then I would have to reject Sullivan’s suggestion that the defence he proposes should include the component of a ‘lapse of character’.
77 Sullivan (n 28) 143. But only when the defendant’s actions are ‘outside the realm of heinous conduct’. 78 cf Lacey’s hypothesis that there is a ‘subterranean’ idea of character at work in criminal responsibility- attribution processes, Nicola Lacey, ‘The Resurgence of Character: Criminal Responsibility in the Context of Criminalisation’ in RA Duff and Stuart P Green (eds), Philosophical Foundations of Criminal Law (OUP 2011). Discussed in chapter three, at pp 125-29. 79 Sullivan (n 28) 141. 80 cf the Crown Prosecution Service’s policy in relation to character evidence, as set out at
This then brings us back to Sullivan’s ideas about a defendant’s ‘exceptional circumstances of disequilibrium’ – a concept that is much more helpful to the premenstrual defendant. For, within the class of defendants who experience such ‘circumstances of destabilization [sic]’,82 Sullivan includes not only the involuntarily intoxicated,83 and those who become disinhibited from the unanticipated adverse effects of some types of medication,84 but also, ‘persons afflicted with such potentially destabilizing [sic] conditions as diabetes, epilepsy, arteriosclerosis, cerebral tumours, and severe pre-menstrual tension’.85 According to Sullivan, as long as public safety concerns can be met86 then the ‘subjects within these categories should be afforded a defence of the kind argued for here’,87 because no censure of any kind attaches itself to these conditions.88
The way that Sullivan rationalises his approach is as follows. First, he acknowledges that criminal responsibility is grounded in established conceptions of capacity,89 and that an individual is a subject or agent of the criminal law if they can attain a minimum standard of practical reason. Importantly, on Sullivan’s account, the individual in question must retain some capacity for rational moral agency and – notwithstanding their mental condition or state of mind – they should in fact be able to form the mens rea for the offence with which they have been charged.90 In this respect then, they are still an agent of the criminal law. In addition, this formulation also assumes that capacity and rationality do not exist as ‘all-or-nothing’ concepts.91 Rather, as is the case for responsibility itself,
82 This state of destabilisation must act as a ‘catalyst’ for the criminal conduct that would otherwise be considered untypical of the defendant. Hence, Sullivan says, this will exclude many ‘normal’ life narratives, Sullivan (n 28) 135, 144. 83 Ibid 146. 84 Re H [1990] 1 FLR 441, R v Hardie [1984] 3 All ER 848; R v Quick [1973] QB 610 are relevant cases on this point. 85 Sullivan (n 28) 147. 86 He suggests civil commitment as one way of managing these individuals. Arguably, there might be other options available, including medical treatment without detention. 87 Sullivan (n 28) 147. 88 Sullivan stops short of including alcoholism and drug addiction in the ambit of the excuse, saying that, ‘It would be problematic to describe as “involuntary” those states of intoxication which are a regular feature of the lives of alcoholics and other addicts’, Sullivan (n 28) 146. 89 Ibid 139. 90 Ibid 142. 91 As Lacey points out, ‘just as the cognitive and volitional capacities required for attributions of responsibility are not all-or-nothing but come in degrees, so too does responsibility itself’, Lacey and Pickard (n 47) 17. 183
they might be said to exist in degrees.92 Helpfully though, Sullivan’s proposal does not require the defendant’s rationality or capacity to be measured precisely. It is enough that the defendant has some capacity for rational agency. Thus, one fundamental advantage to Sullivan’s approach is that the defendant who pleads this excuse still retains their status as an agent of the criminal law.
This then is the potential arrangement that he suggests for these types of defendants. That, while still being free to pursue an existing defence – for example, insanity, automatism or in relevant circumstances, diminished responsibility – as an alternative, a defendant ‘should be allowed to plead that even though the grounds of inculpation may be present in their case, the incident was untypical of them and was a product of their condition’.93 To make this formula work in practice, Sullivan suggests that two questions should be put to the court. In his example, he cites the condition of PTSD,94 but to highlight the potential relevance of this defence to the case of the premenstrual defendant, here I substitute ‘PTSD’ for ‘PMDD’:
(1) Was it probable that D was in the condition known as ‘PMDD’ at the time of her act? (2) Would D have perpetrated the act had she not been in ‘PMDD’ at the time?95
Thus, the defence requires that the defendant has suffered a probable ‘destabilisation’,96 and that the circumstances in which this has occurred are exceptional, not merely a part of that person’s normal life narrative.97 The court could seek to rely on expert medical evidence in relation to the questions set out above. Notably though, Sullivan does not qualify that the destabilising circumstances must amount to a recognised medical condition, nor do they need to cause a total lack of capacity in the defendant. In this respect, it could be significantly less onerous for certain individuals – including the premenstrual defendant – to satisfy the relevant standard and to plead this as an excuse.
92 Stephen J Morse, ‘Craziness and Criminal Responsibility’ (1999) 17 Behavioral Sciences & the Law 147, 160. 93 Sullivan (n 28) 148. 94 In reference to R v T (n 74). 95 Sullivan (n 28) 150. 96 Expert medical evidence would be relevant to the questions asked, in order to give the conclusions drawn a degree of forensic reliability. Notably though, Sullivan does not qualify that the ‘destabilising circumstances’ must be a recognised medical condition. 97 Used appropriately, this aspect of the defence could be used to police its limits. For example, by differentiating between the clinical disorder of PMDD and the ‘ordinary’ aspects of premenstrual syndrome (PMS). 184
Lacey takes up Sullivan’s proposal within her evaluation of the potential for extending the partial defences. Here, she expands further on the way this ‘troubling third category’98 of defences could be seen to operate. In instances like these, she suggests that, ‘unlike the person claiming an exemption, the circumstances are such that we are not inclined to make any more general judgement about [a person’s] capacity to participate in the criminal law’s reasoning system’ and that, ‘it might be better to think of these cases in terms of temporary lapses of normal conditions of agency, given that the lapse is of the kind which removes or seriously undermines the normal reasoning process’.99 As Lacey says, this also obviates the need to rely on the idea of a defendant’s ‘temporary lapse of character’.100 Thus, it is possible to re-conceptualise the rationalisation of this form of defence without having to apply as strict a notion of ‘capacity’ as that set out in the Law Commission’s proposals, discussed in the previous section. Arguably, this opens up a theoretical space within which to think of the defence of ‘mitigated criminal liability’ in terms of a ‘destabilisation’ or an ‘undermining of’ a defendant’s capacity. Conceptually, this looks different – in fact, is different – to a total lack of capacity. Thus, re-framing the rationalisation of a defendant’s excuse in this way allows for more of a broad-spectrum evaluative approach to the issue of their responsibility-attribution. This notion itself is premised on two fundamental precepts of the criminal law: first, that a defendant must be ‘neither over convicted nor under convicted’, and secondly, that they should be punished appropriately.101 And arguably, this holistically principled approach is aligned as closely to the idea of mitigation per se, as it is the established rules on criminal liability. Thus, that is where I focus my attention on in the next section – in order to better understand how the concept of mitigation might be drawn into the framework of current criminal responsibility-attribution practices, in particular the partial defences.
98 Lacey (n 7) 120. 99 Ibid 121. 100 Ibid. 101 per Bingham LJ, Law Commission, Murder, Manslaughter and Infanticide (Law Com. No 304, 2006) para. 1.64. Whilst I do not explicitly discuss specific punishments or a potential sentencing scale that might be linked to this form of partial defence, I do consider the issue of punishment to be potentially relevant to both the label and criminal stigmatisation of a premenstrual defendant who is convicted of an offence – both of which could be conceived of as punishments per se. 185
4. Mitigating the premenstrual defendant’s criminal responsibility
I start this section with a brief clarification, on the basis that one might be required in order to resolve any ambiguity regarding my use of the terms ‘mitigated’ and ‘mitigation’ in the section that follows. Both of these words stem from the Latin, ‘mitigare’ – ‘to make more gentle’.102 In essence, this describes my undertaking in this section. That is, to assess how the concept of mitigation could be put to work,103 to make the criminal law’s responsibility-attribution processes ‘more gentle’ in respect of certain types of defendants. To be clear then, here I explore the construction of a new partial defence of ‘mitigated criminal liability’ via the medium of existing legal understandings of the principles that underpin the process of mitigation within English criminal law. Admittedly, at first glance it might appear that attempting to bring together the disparate elements of the responsibility-attribution stage and sentencing stage of criminal proceedings in this way could prove to be a potentially erroneous undertaking. However, that is not to say that the proposition which I put forward below would be wholly without scholarly support. For as Lacey herself has speculated, the feminist criminal law reform agenda might indeed counsel in favour of the reception of factors that are regarded as being relevant at the sentencing stage of proceedings, into the established framework for determining criminal liability.104 Conceivably, the conjecture that Lacey makes on this point provides the kernel of my proposition for drawing on the concept of mitigation in order to develop the scope and range of the existing partial defences within English criminal law.105
That said, whilst Lacey’s feminist legal discourse might signal this area of law as being ripe for potential development,106 it is worth pointing out also that the new defence I refer to below is not one that is solely predicated on the premenstrual disorders or indeed restricted to female defendants in general. Although undoubtedly the premenstrual
102 Buchanan (n 26) 43. 103 Thus, the focus of my analysis in this section is on a broader conceptual understanding of the ideas underpinning ‘mitigation’ and ‘mitigating circumstances’, not on the specific legal application of mitigation which takes place at the sentencing stage of criminal proceedings, via the established procedural mechanism of the defendant’s plea in mitigation. 104 See Lacey (n 20) and the accompanying discussion at pp 169-70. 105 The partial defence of diminished responsibility being more pertinent to this discussion than the defence of loss of control. 106 In fact, the concept of mitigation is significantly under-researched. Similarly, available literature on the doctrine of partial responsibility is also quite limited, cf ‘Partial Defenses’ in Douglas Husak, The Philosophy of Criminal Law (OUP 2010). 186
defendant has been instrumental in guiding the approach I have taken to constructing and articulating the way in which my proposed new partial defence of ‘mitigated criminal liability’ might operate. Essentially, this is because:
it can be argued that the female-specific defences provide a starting-point for a feminist re-thinking of criminal law and, more specifically, its category based and decontextualised approach to liability . . . [and] one can seek to harness law’s own rhetoric of justice and criminal law’s existing categories, in order to ensure justice not only to women, but all those marginalised by existing power relations.107
Therefore, as set out above, the proposal that I make in this chapter is for a new defence of ‘mitigated criminal liability’ and the way that I envisage the operation of this particular form of legal excuse is as an additional partial defence. Fundamentally, this partial defence would largely replicate current understandings of the existing defence of diminished responsibility, but importantly it would operate within a wholly separate legal framework, thus avoiding the potential issues that might be thrown up by merely extending the ambit of the existing partial defences, as some commentators have previously suggested.108 Under no circumstances would this new partial defence operate as a full, substantive defence and neither would it be part of the sentencing stage of criminal proceedings – despite the terminology that I use to describe the defence, and the longstanding notion that ‘mitigation’ is generally something that takes place after the decision as to a defendant’s criminal responsibility has been made.
On this point, it should be noted that there is in fact already a degree of overlap and conceptual correlation in English criminal law between the partial defences and the idea of mitigation. For example, referring to the partial defence of diminished responsibility, the Law Commission states that it was originally introduced as ‘a device to enable the courts to take account of a special category of mitigating circumstances’.109 Furthermore, whilst the partial defence of diminished responsibility is a relatively recent addition under
107 Donald Nicolson, ‘What the Law Giveth, It Also Taketh Away’ in Nicolson and Bibbings (n 20) 175. The defences that Nicolson refers to here are: marital coercion, infanticide, battered women’s syndrome (BWS) and premenstrual syndrome (PMS). 108 Helen Howard, ‘Diminished Responsibility, Culpability and Moral Agency: The Importance of Distinguishing the Terms’ in Ben Livings, Alan Reed and Nicola Wake (eds), Mental Condition Defences and the Criminal Justice System (Cambridge Scholars Publishing 2015). 109Law Commission, Partial Defences to Murder (Law Com No 290, 2004), para 5.15-16, referring back to the Report of the Royal Commission on Capital Punishment 1949-53, (1953) Cmd 8932, para 413. 187
English criminal law,110 in Scotland the defence has a much longer history,111 and has been variously described by Scottish judges over the years as ‘diminished responsibility’, ‘full responsibility to partial responsibility’, ‘partial responsibility’, ‘lessened responsibility’ and ‘partial insanity’.112 Thus, whilst the underlying premise of Scottish diminished responsibility has remained much the same, the terminology of the defence has shifted over the centuries – to the extent even that, prior to the recent reform of Scotland’s current diminished responsibility provision,113 there was in fact a proposal that the suggested reforms might also incorporate the concept of mitigation by allowing for a proposal for this existing partial defence to be renamed, ‘Mitigation by reduced capacity’.114
Indeed, this overlap between the existing partial defence of diminished responsibility and the concept of mitigation also extends in the opposite direction. For, as suggested in the Law Commission’s 2003 report on partial defences:
logically, as diminished responsibility reduces the defendant’s responsibility for the killing, it ought to be viewed as a mitigating factor rather than a partial defence in a case where, by definition, the defendant’s level of culpability is established by reference to the traditional concepts of conduct and mens rea.115
In addition, and underscoring this assertion to an even greater degree, the Scottish Law Commission has also postulated that, if the defence of diminished responsibility is regarded merely as a means of giving effect to a set of special mitigating circumstances, then the difference between a partial defence and a special mitigating circumstance may be ‘merely a semantic and not a conceptual one’.116 In the section that follows then, I explore the potential implications of this proposition in more detail. Importantly though, it should be noted that throughout the discussion set out below, I employ the notion of mitigation as a conceptual idea – rather than as an existing practice within the English
110 Originally set out in the Homicide Act 1957, s 2. 111 Summarised by the Lord Justice-General (Rodger) in Galbraith v. HM Advocate [2001] Scot HC 45. 112 As described by Rudi Fortson QC, ‘The Modern Partial Defence of Diminished Responsibility’ in Livings, Reed and Wake (n 108) 21-22. 113 Section 51B of the Criminal Procedure (Scotland) Act 1995, amended by the Criminal Justice and Licensing Act (Scotland) Act 2010, Part 7. 114 A point that was picked up on by the Law Commission of England and Wales, Law Commission (n 109) para 5.66. 115 Ibid para 5.43, citing HHJ Michael Stokes QC. 116 (emphasis added) Discussion Paper on Insanity and Diminished Responsibility (2003) Discussion Paper No 122 at para 3.16. 188
criminal justice system’s sentencing process – in order to assess its potential place within a revised partially excusatory framework for English criminal law. The rationale for doing so is to attempt to move towards a ‘moral barometer standardisation’ of criminal liability that is more ‘reflective of appropriate gradations of rectitude and culpability’,117 bearing in mind also that it is equally important for the reduced culpability of any defendant ‘to be reflected in “fair and just labelling” and not just by mitigation of sentence’.118 Thus, drawing together these principled approaches, and interpreting them in light of the additional partial defence/mitigation theories that are set out below, I sketch out the relevant principles that underpin my proposal for a defence of ‘mitigated criminal liability’, before moving on to consider how this might be given practical effect within the existing legal framework.
In principle, the proposal that I make is based on Morse’s assertion that, ‘the criminal law should include a generic doctrinal mitigating excuse of partial responsibility that would apply to all crimes and that would be determined by the trier of fact’.119 In addition, as part of his own formulation of an overarching doctrine of partial defences, Husak states that, ‘Partial justifications and excuses are kinds of mitigating circumstances’.120 Here, he uses the term ‘mitigating circumstances’ in a broad sense, not solely in relation to its accepted contemporary terminology of the process of mitigation that takes place at the sentencing stage of proceedings.121 According to Husak then, a circumstance mitigates ‘if it alleviates, abates, or diminishes the severity of a punishment imposed by law’.122 Thus, in descriptive terms, ‘a circumstance mitigates if it reduces the severity of the defendant’s punishment as a matter of positive law’, whereas ‘normatively, a circumstance mitigates if it should reduce the severity of his punishment’.123 In addition, while all partial excuses are comprised of mitigating circumstances, not all mitigating circumstances will be sufficient to operate as a partial excuse.
117 Alan Reed and Nicola Wake, ‘Anglo-American Perspectives on Partial Defences: Something Old, Something Borrowed, and Something New’ in Livings, Reed and Wake (n 108) 206. 118 Law Commission (n 109) para 5.18. On the issue of fair labelling, see the extended discussion below at pp 196-98. 119 (emphasis added) Morse (n 2) 289. 120 (emphasis original) Husak (n 106) 312. 121 See further Joanna Shapland, Between Conviction and Sentence: The Process of Mitigation (Routledge and Kegan Paul Limited 1981); Julian V Roberts, Mitigation and Aggravation at Sentencing. (Cambridge University Press 2011). 122 Husak (n 106) 312. 123 Ibid (emphasis original). 189
As with full excuses, partial excuses are premised on a desert-based rationale. Thus, a defendant who successfully pleads a partial excuse theoretically deserves to be attributed with less liability for the crime that they have committed. This leads to Husak’s proposition that, as a matter of justice, defendants should be entitled to the judicial consideration of the kinds of circumstances which might mitigate their liability, for the simple reason that the rationale which underpins them is a desert-based one.124 On this account then, there exists a principled argument for the provision of legal excuses that formally mitigate – even if they do not necessarily fully excuse – a defendant’s criminal responsibility. Wasik provides further theoretical analysis on the idea of partial excuses, and his account also pivots around the concept of mitigation.125 He starts first by saying that most writers126 tend to assume a clear procedural division ‘between excusing conditions and mitigating excuses . . . taken account of by way of sentencing discretion’.127 However, not only is the manner of this distinction very rarely articulated – and when it is, then unconvincingly argued – but also, it often fails to account for the existence of the partial excuses of the criminal law, such as diminished responsibility and loss of control.
Coming back to Morse’s account, he argues that the present operation of Anglo-American criminal responsibility-attribution practices is unfair because the law does not sufficiently permit mitigating claims.128 In his view, the principles of fairness and proportionality require that the doctrine of partial responsibility and mitigating excuse should be available to all those defendants whose culpability at the time of their crime is substantially reduced.129 Therefore, he explicitly rejects the notion that this type of excuse should be restricted to the offence of murder, stating:
124 Husak (n 106) 313. 125 Martin Wasik, ‘Partial Excuses in the Criminal Law’ (1982) 45 Modern Law Review 516. In addition, Morse frequently refers to ‘mitigation’ in his elucidation of ‘a generic doctrinal mitigating excuse of partial responsibility that would apply to all crimes’, Morse (n 2) 289. 126 Here, Wasik refers in particular to Hart, Fletcher, Fingarette and Hasse, Wasik (n 125) 516. For example, HLA Hart, ‘Legal Responsibility and Excuses’ in Punishment and Responsibility: Essays in the Philosophy of Law (Clarendon Press 1968); George P Fletcher, ‘The Individualization of Excusing Conditions’ (1973) 47 Southern California Law Review 1269; Herbert Fingarette and Ann Fingarette Hasse, Mental Disabilities and Criminal Responsibility (University of California Press 1979). 127 (emphasis original) Wasik (n 125) 516. 128 Morse (n 2) 296. 129 Howard makes a similar argument in relation to an extension to the current defence of diminished responsibility on grounds of diminished culpability, Helen Howard, ‘Diminished Responsibility, Culpability and Moral Agency: The Importance of Distinguishing the Terms’ in Ben Livings, Alan Reed and 190
Suppose that an agent suffering from a non-culpable state of diminished responsibility commits arson. Some arsonists and some criminals generally might act with non-culpable, substantially impaired rationality that does not meet the standards for a legal excuse.130
Morse argues that there is a moral imperative for a generic partial responsibility excuse for situations such as these.131 Otherwise, in the absence of this type of excuse, a defendant is left in the anomalous position that their culpability is substantially reduced but they have no doctrinal tool to make their claim to partial responsibility. As he points out, ‘with precious few exceptions, present criminal law contains doctrinal all-or-nothing, bright line tests; the defendant was or was not legally insane’.132 In addition, the criteria for the tests of a lack of capacity frequently tend to be defined quite narrowly and often can be difficult to satisfy. Thus, it is the case that few defendants are able to take advantage of this type of mental disorder defence and instead many are left to the mercy of the sentencing judge’s discretion.133 Although it is feasible in principle for partial responsibility to be taken into account at the sentencing stage of proceedings, this option suffers from a number of defects. Alongside the issue of judicial discretion per se, there can be further potential complexities regarding perceived disparities between judicial attitudes, for example in relation to gender stereotypes. In addition, different judges may take divergent views on the relevance and importance of the medical evidence in a particular case. And even the way in which they view the legal issue of criminal responsibility itself may differ. Moreover, as Morse says, ‘Partial responsibility is an explicitly normative judgement that should be made, therefore, by the community’s representatives at the guilt phase, and not judges at sentencing’.134 As things currently stand then, neither current doctrines of criminal responsibility-attribution, nor sentencing practices can guarantee a principled approach and a fair consideration of mitigating factors in most cases.
All this leads Morse to propose a new verdict for the criminal law. This he says would be available, in appropriate cases, in addition to the existing findings of ‘guilty’, ‘not guilty’
Nicola Wake (eds), Mental Condition Defences and the Criminal Justice System (Cambridge Scholars Publishing 2015) 318. 130 Wasik (n 125) 296. Nicola Owen being a case in point, Owen and Higgins (n 24). 131 Morse (n 2) 290. 132 Ibid 295. 133 Ibid 194. 134 Ibid 299. 191
and ‘not guilty by reason of insanity’. The new verdict would be called ‘guilty but partially responsible’,135 and the criteria for such a finding, Morse sets out as follows. First, the defendant’s capacity for rationality must have been substantially reduced at the time of the crime, and second, the defendant’s diminished rationality must have substantially affected his or her criminal conduct. The formula for the direction to be made to the jury in the relevant instance, would be: ‘The jury may find the defendant GPR if, at the time of the crime, the defendant suffered from substantially diminished rationality for which the defendant was not responsible and which substantially affected the defendant’s criminal conduct’.136 In Morse’s view, this encapsulates the nature of the normative excusing condition that forms the basis for the excuse, it uses common sense terminology and it is not unduly restrictive in terms of being tied to any additional onerous requirements of proof. And, whilst I do not agree with Morse’s formulation in its entirety – mainly on account of the nomenclature – arguably his formulation of a generic partial responsibility mitigating excuse provides a solid foundation from which to move forward with my idea of ‘mitigated criminal liability’.
Wasik makes a further contribution in respect of the doctrine of partial excuses. He suggests that within the criminal law there is a ‘scale of excuse’ that runs ‘downwards from excusing conditions, through partial excuses, to mitigating excuses’.137 At the top end of the scale are the excuses, such as automatism, that hold the maximum moral weight for exculpation, while those at the lower end of the spectrum, although still morally significant, tend to be more easily outweighed by policy considerations, with ‘good motive’ being an apt example. Partial excuses occupy the uncomfortable middle ground between the two and, as Wasik suggests, at any given stage in the history of criminal law the policy claims that are used to argue for or against the status of each excuse will be seen to be more or less compelling. In essence then, there is no overarching rationale to the ‘qualifying’ features of the excusing conditions, the partial excuses, or the mitigating excuses that make up the scale. Therefore, Wasik counsels in favour of a serious reconsideration of the way in which partial excuses operate,138 to enable them to claim a legitimate foothold within the operation of the English criminal law, and to accord them
135 Morse (n 2) 299. 136 Ibid 300. 137 Wasik (n 125) 524-25. 138 Ibid 532. 192
with a greater importance and wider significance than is currently recognised. Accordingly, his arguments also help to underpin the proposal that I make for a new partial excuse of ‘mitigated criminal liability’.
Within his own reconsideration, Wasik goes on to identify, then to address, the two principal objections that tend to be raised with regard to the operation of partial excuses. First, there is the argument that partial excuses are ‘incoherent’139 and secondly, that they are problematic because of their relationship to the fixed penalty for murder that exists under English law. In relation to the first point, it is fair to say that the existing partial excuses are an incongruous feature on the legal landscape, ‘since the essence of the jury’s verdict is the determination of an issue in terms of ‘black’ or ‘white’: guilty or not guilty. There is no third alternative’.140 As Wasik argues though, further elaboration paints a more complicated picture than this strict division between ‘guilty’ and ‘not guilty’.141 Husak too, criticises the restrictive binary approach to the jury’s verdict, saying rather that ‘wrongfulness and blame admit of degrees – they are not ‘all-or-nothing’ concepts – and may be present in greater and lesser amounts’.142
In reality then, when a jury returns its verdict, the members of that jury are not making a decision on an abstract question of responsibility, but are saying instead that, ‘X ought to be held legally responsible and liable to punishment for committing the offence charged’.143 And this implies a moral dimension to the procedural question that the jury are being asked to answer. Once this moral dimension is made apparent, Wasik postulates that there are in fact ‘four possible attitudes that might be taken by a jury, rather than just two’.144 These are as follows:
139 Wasik (n 125) 517. 140 Ibid. 141 Although, arguably the verdict of ‘not guilty by reason of insanity’ itself represents a third alternative. 142 Husak (n 106) 316. 143 Wasik (n 125) 518. 144 Ibid. 193
(a) that X should be held responsible and punishable for the particular offence charged; (b) that X should be held responsible for the particular crime charged, but that there are strong mitigating circumstances; (c) that X should be held responsible for a lesser, more appropriate offence than the one charged, and that his punishment should be affected accordingly; (d) that X should be acquitted145
For the purposes of my proposal, case (b) is most suggestive of the normative rationale for the idea of ‘mitigated criminal liability’ that I am seeking to implement. For, as Wasik suggests, this option indicates that there is a mitigating factor present that is of such significance that it would be fair and just to include this as part of the verdict that is reached. Thus, on Wasik’s schematic described above, the normative impetus of this concept can be derived from (b). Somewhat problematically though, the substantive and operative impact of this option is limited to an extent by the idea set out in (c). The question then is how to formulate a practical model of ‘mitigated criminal liability’ that takes both these ‘attitudes’ into account. Thus, the inherent problem here is that in order to provide the type of ‘intermediate solution to the question of criminal responsibility’ that Wasik suggests, there would need to be some form of ‘visible reduction in the offence category’.146
Wasik himself makes three suggestions for effecting this ‘visible reduction’.147 Either the criminal law could create new offences, use existing offences, or provide specific mitigation, in order to give practical effect to the ‘intermediate solution to the question of criminal responsibility’.148 Surveying these models, there are advantages and some potential stumbling-blocks to all three. For example, Wasik’s first suggestion is to create a new, ‘nominal’, criminal offence, which would come into being by the reduction of a ‘greater’ existing offence, as is the case for the offence of murder and voluntary manslaughter. The main question here is, whether the law should provide for a number of ‘lesser’ offences that could be charged in the alternative when the defendant successfully pleaded the relevant partial defence, or whether it should legislate for ‘a single nominal “fallback” offence to cover all the cases where reduction is effected by a
145 Wasik (n 125) 518. 146 Ibid 526. 147 Ibid. 148 Ibid. 194
partial excuse’.149 The former suggestion would inevitably complicate matters further, the latter raises the issue of what the name of the ‘fallback’ offence should be. On Wasik’s account, this is an important issue given that the name employed needs to cover a wide array of cases, coupled with the fact that, whatever name is used, it also needs to indicate the lesser offence that the defendant is liable for in order for it to be included on the defendant’s record.
Wasik’s second suggestion is for the criminal law to use existing offence mechanisms to give effect to the ‘intermediate solution’ of a partial excuse. Again though, there is a difficulty with this suggestion. For, while this option works well with the existing partial defences – allowing the offence of murder to be reduced to voluntary manslaughter, for example – it is difficult to see that all relevant criminal offences could be ‘paired off’ in this way.150 Furthermore, there are additional procedural difficulties with this approach. In relation to the actus reus, there would still need to be a correlation between the ‘greater’ offence and the corresponding ‘lesser’ offence. Otherwise, a defendant who successfully pleads a partial excuse might end up with a conviction that has a substantially different actus reus to the offence originally charged. With regard to the mens rea, there is another anomaly. For example, if the partial excuse was used to negative the mens rea of the ‘greater’ offence, then logic would seem to suggest that it would also negative the mens rea of the ‘lesser’ offence. Wasik opines that one way round this would be for the partial excuse to be seen as operating outside of both the actus reus and the mens rea, as is already the case for the partial defences of diminished responsibility and loss of control.151
Finally, Wasik argues that the mitigating effect of the partial excuse could be achieved by way of a specific discount on the sentence. Whilst this does not cause any of the difficulties set out above with regard to the offence categories, it does have some other drawbacks. For example, there would be no alteration in the name of the offence, unless this option was conjoined with one or both of the approaches set out above, and in addition it would be difficult to calculate the exact discount to be applied in the particular circumstances. Therefore, whilst this third option might be a corollary part of the partial
149 Wasik (n 125) 526 (emphasis original). 150 Ibid 527. 151 Sullivan’s original formula bypasses this problem in any event, because the defence can be pleaded even though mens rea has been established on the facts of the case, Sullivan (n 28). 195
excuse, and perhaps something that could be taken account of at the sentencing stage of a defendant’s proceedings, this is not the main thrust of the rationale behind the ‘intermediate solution’ of the partial excuse of ‘mitigated criminal liability’ that is discussed here.
Taking all of this into account then, what is the most appropriate way to assess the grading issues within the partial defence of ‘mitigated criminal liability’ that I am arguing for? First, I would suggest that this idea is best formulated by reference to one ‘fallback’ heading of partial criminal responsibility. As I have already referred to above, the heading that I propose is ‘mitigated criminal liability’. This would not refer specifically to a nominal offence, as Wasik suggests, although arguably, it is in fact the name that is the key factor to this heading of liability. Rather, the nomenclature for the defendant’s grade of liability would be articulated by reference to the partial excuse itself. I would argue that the nature, degree and grade of liability that is imposed on the premenstrual defendant is best reflected in the label of ‘mitigated criminal liability’. This one heading of liability would simplify the otherwise complex operative issues of a defence that could potentially cover such a wide range of offences. In the form that I suggest below, it would also allow the classification of the defendant’s offence to be retained on their criminal record, whilst at the same time marking out and making clear the extent of their liability for that offence.
Ultimately, combining all of these factors together, the full articulation for the new partial defence that I suggest would be: ‘Mitigated Criminal Liability: ( . . . ) with a space following the designation that would allow for the insertion of the title of the offence that a defendant has been found partially liable for in the circumstances. This new partial defence would be available to all suitable defendants, regardless of their gender. The other point that should be made explicit here is that the idea for a finding of ‘Mitigated Criminal Liability’ stems directly from my consideration of the way in which current criminal responsibility-attribution practices place the premenstrual defendant at a distinct disadvantage. This is the rationale that underpins the way in which I articulate this idea below.
However, before proceeding to delineate the concept in more detail, there are some more general points to be made about the issue of labelling – both in general, and in respect of the premenstrual defendant in particular. Until relatively recently, labels and labelling did 196
not attract a great deal of theoretical attention within the criminal law152 - a fact that is itself striking when one considers the import and potential consequences of the labels that lie at the heart of criminal responsibility-attribution practices: ‘guilty’ and ‘not guilty’.153 Fair labelling is important154 – and Chalmers and Leverick cite several reasons why labels matter so much within the criminal law.155 In addition, these can vary in significance, depending on the context, the audience to whom the label is addressed, and the consequential effects of the label – for example, the pernicious impact that the label of a criminal conviction can have on a person’s employability.156 Given the potential influence and impact that fair labelling can have within the criminal law then, it is perhaps not surprising that in recent years the concept of ‘fair labelling’ has begun to attract the attention of modern legal theorists.
As one of the first to focus more directly on the issue, Ashworth registered the importance of fair labelling for the underpinning principles of ‘proportionality’ and ‘maximum certainty’ within the criminal law,157– noting in addition that ‘[f]airness demands that offenders be labelled in proportion to their wrongdoing’.158 Chalmers and Leverick went on to develop this point further, saying that:
The interest in question is the offender’s legitimate interest in protecting her reputation and on this basis the argument that insufficiently precise labels are unfair to the offender is one that has some force. At the very least, this is a convincing justification for labels that are not inaccurate or potentially misleading.159
In addition, Chalmers and Leverick contend that the most convincing argument for fair labelling overall is that offence names can be used to communicate information about an
152 The first usage of the term ‘fair labelling’ can be found in Glanville Williams, ‘Convictions and Fair Labelling’ (1983) 42 The Cambridge Law Journal 85. 153 In addition, the alternative verdict of ‘not guilty by reason of insanity’ can connote its own potentially stigmatising label. 154 For a full discussion of ‘fair labelling’ as a principle of the modern criminal law, see James Chalmers and Fiona Leverick, ‘Fair Labelling in Criminal Law’ (2008) 71 Modern Law Review 217. 155 Ibid. For example: as a check on sentencing discretion, p 224; fairness to the offender, p 225; a symbolic function, p 226; communication to the public, p 226; communication to offenders, p 229; and communication to agencies outside the criminal justice system, p 230. 156 Jamie Grace, ‘Old convictions never die, they just fade way: the permanency of convictions and cautions for criminal offences in the UK’ (2014) 78(2) The Journal of Criminal Law 121. 157 Originally naming the principle ‘representative labelling’: Andrew Ashworth, ‘The Elasticity of Mens Rea’ in CFH Tapper (ed), Crime, Proof and Punishment: Essays in memory of Sir Robert Cross (Butterworth 1981) 53. 158 (emphasis added) Chalmers and Leverick (n 154) 225, citing Andrew Ashworth, Principles of Criminal Law (5th edn, OUP 2006) 88. 159 Chalmers and Leverick (n 154) 237. 197
offender to a number of different bodies, including members of the public. Fair labelling in this context then should be ‘fair in the descriptive sense - the use of simple, informative offence names that convey the essential nature of the wrongdoing’ and so, ‘What is important here is not so much the extent to which offences are differentiated but the name itself”.160 Arguably, this rationale extends also to the labelling of defences – and ultimately, the label of criminal liability that attaches to the individual defendant.
Therefore, in light of the brief discussion on fair labelling set out above, I would suggest that the label of the partial defence that I propose for the premenstrual defendant needs to address the following points. First, it should be a fair representation of the criminal liability that is being imposed - that is partial responsibility. It also needs to be understandable to those within and outside of the criminal justice system, including the general public. In addition, it should take account of the fact that the agent has committed the criminal offence in question, but that they did so under the mitigating circumstances of their recognised medical condition. And descriptively, it needs to provide some context and demonstrate that a defendant’s culpability, and therefore also their liability, for their crime was ‘mitigated’ on account of their individual circumstances. Finally, as far as is practicable, it should aim to provide an alternative label for a model of responsibility which recognises that a defendant does not deserve to be criminally stigmatised for their offence.
Taking all of these issues into account, arguably the partial defence of ‘Mitigated Criminal Liability’ would be a fair representation of both the label and the level or grade of liability, which would mark out the fact that a court had found the (premenstrual) defendant to be partially responsible for their crime. It takes account of the fact that the (premenstrual) defendant committed the crime in question and it clearly states the offence that the (premenstrual) defendant is being held liable for. On this basis then, it should be understandable both to those working within the criminal justice system and those outside of it, including members of the public. The rationale behind the label is that it also sends a clear message, that the (premenstrual) defendant’s liability – in the specific instance –
160 (emphasis original) Chalmers and Leverick (n 154) 238. They also briefly assess whether fair labelling is important in respect of defences. As they suggest, ‘It might be said that labelling is irrelevant at this stage as the defendant who has a complete defence is guilty of no crime, so there is nothing to be labelled, 244. However, this still leaves open the question how important fair labelling is in the context of the partial defences. 198
is contextualised by reference to a further set of circumstances that resulted in them not being held fully responsible for their crime. One further issue to note, is the lack of a reference to the reason for the (premenstrual) defendant’s mitigated liability – that being that they were suffering from a recognised medical condition when they committed the crime. Arguably though, there would be nothing to prevent the inclusion of a reference to the fact that the mitigation arises from a recognised medical condition, for example PMDD. It is suggested that this is an issue that could potentially be re-visited, depending on whether or not the government decides to implement the Law Commission’s proposals regarding their suggested new defence of ‘not criminally responsible by reason of recognised medical condition’.
Given that the finding would still refer to the original offence charged, there would be no issue as regards the nature of the actus reus for the offence, as this would remain the same as that stated on the indictment. In terms of the relevant mens rea, I would argue that this too would be unproblematic. Therefore, the proposed partial defence operates outside of the mens rea requirement. Finally, as regards, any sentencing discount that might be applied, this decision could be remaindered to the sentencing stage of proceedings. The main issue here is for the partial defence to reflect the formal mitigation of the (premenstrual) defendant’s criminal liability. Importantly though, because the (premenstrual) defendant’s mitigating circumstances have been expressed as a matter of formal mitigation and as directly relevant to the finding of partial liability, then there would be a parallel mandatory requirement for this to be taken into account at the sentencing stage. That said, this would still allow the sentencing court some flexibility, subject to sentencing guidelines,161 in respect of the most appropriate disposal for that particular offender.162 This then is the framework that I propose for the workable ‘intermediate solution’ of a partial defence of ‘mitigated criminal liability’. Admittedly, in its current form, it is still only a basic framework, but arguably it is also a very valid starting point from which to move forward with more detailed proposals.
161 On the sentencing of female offenders, see Julian V Roberts and Gabrielle Watson, ‘Reducing Female Admissions to Custody: Exploring the Options at Sentencing’ (2017) 17 Criminology & Criminal Justice 546. 162 For example, a treatment order or medical supervision of the offender. 199
5. Making a new excuse for the premenstrual defendant
To conclude then, I draw together the main points of discussion and findings of this chapter, in order to articulate in full, the new partial defence that I propose for the premenstrual defendant. The idea that I suggest is for a new excusatory mechanism for the premenstrual defendant that would allow a court to find that she has ‘Mitigated Criminal Liability’ for the crime that she has committed. This proposal is based on my argument that she is a person who should not be held fully responsible in law for the crime that she has committed, and that she should be entitled to rely upon her premenstrual disorder as a legally recognised excusatory factor in the commission of her crime. The Law Commission’s proposals for a new defence of ‘not criminally responsible by reason of recognised medical condition’ are a necessary revision to the current structure of the mental disorder defences, but, for the reasons set out above, I would argue that there also needs to be a new partial defence that operates in line with this proposal. What I propose here then, is a new type of partial excuse for the premenstrual defendant – and for others similarly affected by a medical condition. This excuse would operate as a partial defence, but also as an affirmative legal mechanism that would attribute partial responsibility or liability to the defendant who is able to successfully plead this as a partial excuse. The justification for this new partial defence is that it is unjust to hold a person fully responsible if they did not have the relevant capacity to adjust their behaviour to the law, but equally also, that it is fair and proportionate to hold them to account to some degree, if their capacity was not fully compromised in the circumstances.
At present there is no such partial excusatory mechanism within the English criminal law. Arguably, this represents a significant gap within current criminal responsibility- attribution practices. The existing framework for the partial defences is also unduly restrictive, in that a defendant can only plead a partial defence to the crime of murder. There is though, no convincing rationale for why this should continue to be the case. The proposal that is set out in this section would remedy this gap in the law. An additional benefit to the recommendation discussed here is that there would be no disruption to the operation of the existing partial defences for murder. Given that the new partial defence of ‘Mitigated Criminal Liability’ would operate within a wholly separate framework, the existing partial defences to murder under the Coroners and Justice Act 2009 could be
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retained in their entirety and could continue to operate on precisely the same basis as they do at present.
The proposal that I make is grounded in the notion of capacity-based criminal responsibility. However, it differs from the strict test of capacity set out in the Law Commission’s recent proposals for a new defence of ‘not criminally responsible by reason of recognised medical condition’. Based on the discussion set out above, I argue that there is scope in the law to take a more balanced approach to the issue of capacity – particularly in the light of the fact that the defence I propose would operate only to partially excuse a defendant. A principled test could be formulated in a variety of different ways: as a lack of capacity for rationality that takes the defendant’s contextualised circumstances into account; or as a specific lapse of agency, lapse of capacity or lapse in rationality; or formulated by reference to the defendant’s destabilised state of mind and their consequent state of disequilibrium. The underlying premise though, is the same for each. That is, the defendant cannot be said to have full capacity in the circumstances, but neither can they be said to have experienced a total lack of capacity at the time they committed their crime.
The defence would be grounded in the notion of a ‘recognised medical condition’. Thus, only those defendants who could demonstrate that they were suffering from a medical condition at the time of their offence would be allowed to present the defence. This aligns with the Law Commission’s recent reform proposals for a new defence of ‘not criminally responsible by reason of recognised medical condition’. As with that proposal, the defence of ‘Mitigated Criminal Liability’ could refer to both physical and mental health conditions. This would help to achieve consistency in terms of the way in which these linked defences were implemented and applied within the courts. Thus, the partial defence would mirror in many respects, the proposals that have already been put forward. For example, the partial defence could require evidence from two expert medical witnesses, the result would be a modified special verdict, and disposal of an offender could also operate along similar lines, for example, by way of a supervision order, hospital order or absolute discharge. The special verdict would also be included on the defendant’s criminal record. Not only is this advantageous in respect of proportionality and fair labelling, but arguably in the longer term, and as the operation of the defence becomes more widespread and better understood, this may help to ease the stigma of a ‘Mitigated Criminal Liability’ conviction. This, of course, is a speculative point but potentially, the 201
proposal set out above could represent a positive move towards a less stigmatising approach overall.
The excuse and the result of a successful plea then would be formulated as one of ‘Mitigated Criminal Liability’ for the crime which a defendant has committed. Most importantly, this would be applicable to all offences – except for murder, and crimes of strict liability. This then would remedy a significant gap in the existing legal excusatory mechanisms of English criminal law. Moreover – and this is the point that I choose to end this chapter with – the defence is one that potentially could be utilised by not only the premenstrual defendant, but also a range of other mentally disordered defendants whose circumstances are such that they should not be held fully responsible for their criminal actions. Thus, in the end, whilst this thesis throughout has been focused specifically on the premenstrual defendant – telling her story in the way that it has been set out here, could help to highlight, and potentially also to reconceive, the stories of other similarly affected individuals within the criminal law.
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CONCLUSION
A NEW PLEA FOR THE PREMENSTRUAL DEFENDANT
The primary research question of this thesis has been to assess whether the premenstrual defendant should be held fully responsible for her criminal actions. In truth, the question itself adumbrates the answer. By asking if she should be held fully responsible, then implicit within the question there is an acknowledgement that she should be held accountable and responsible for her actions, but arguably, she should not be held fully responsible for a criminal act that she commits whilst suffering from a premenstrual disorder. That is why, in this thesis, I have advocated for a new form of partial responsibility/partial liability for the premenstrual defendant – and others like her. This argument is based on the fact that English criminal law currently fails to provide an adequate defence mechanism for those defendants who suffer from a recognised medical condition which interferes with their capacity – but the capacity of these individuals is not affected in such a way, or to the extent, that they are able to make use of the existing defences within the English criminal law. The new form of defence that I have argued for would be known as ‘Mitigated Criminal Liability’. Arguably, the proposals set out above would be in the interests of the individual defendant and advantageous to criminal justice overall. This then is the principal finding of this research and in effect, one part of the conclusion to the premenstrual defendant’s story.
That is not the end of the premenstrual defendant’s story though. One of the other main objectives in this thesis has been to study more closely the status of the premenstrual defendant within English criminal law. Thus, my focus throughout has been on trying to tell her story – because ‘the story itself is telling’.1 An inherently problematic account to begin with, the premenstrual defendant’s narrative is made even more convoluted by the complex interplay of the legal, medical and social stories that are told about her. This thesis has been undertaken as an attempt to unravel the various narratives that have shaped her story and to assess what more they might be able to tell us about the question of her
1 Kim Lane Scheppele, ‘Foreword: Telling Stories’ (1989) 87 Michigan Law Review 2073, 2073. 203
criminal responsibility. To bring this thesis to a final conclusion, I set out below some overarching observations about the account that I have given here. Then I assess in more detail how each chapter of the premenstrual defendant’s story has advanced the debate and helped to address the question of whether she should be held fully responsible for her criminal actions. Finally, I briefly consider where all of this might take us in terms of future research directions, both for the premenstrual defendant herself and in respect of criminal responsibility-attribution practices more generally.
By way of an initial observation, I would suggest that there are three overarching themes to emerge from the research conducted in this thesis. The multifarious nature of the issues discussed here means that these are not the only issues of importance, but each of these has had a particularly important reflexive role in shaping this piece of work, and also in helping to analyse and interpret the findings that have come about from the research. The three ‘themes’ that have been key to this thesis relate to the influence of narrative on the law in general, the value of assessing the law in its historical context, and the significance of the individual agent of the criminal law as a contextualised subject of study. Each of these themes has influenced in some way the direction and substance of the analysis conducted here. And so it is that, the significance of telling the premenstrual defendant’s story, the value of assessing her in the relevant historicised context, and the importance of making her the individual subject of scrutiny, have all been key factors in arriving at the conclusions set out below.
Clearly, the premenstrual defence has a history within the English criminal law. This history is longer than some might presume, dating back as it does to the nineteenth century cases of ‘disordered menstruation’ that came before the English courts. Depending on the view one takes of these Victorian criminal proceedings, these decisions could be seen as either scientifically progressive or perhaps rather, indicative of contemporary society’s view of women’s quintessential weakness and ‘womanhood’. But it is the twentieth century premenstrual cases that tell us most about the operation of the defence. Thus, one of the underlying aims of this work has been to demonstrate how important it is that the individual narratives of these defendants are not regarded as historical artefacts nor dismissed as such, for there is much to learn from a retrospective of these cases and an
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enhanced ‘socio-theoretic’2 understanding of the temporal context of each of these gendered legal decisions.3 The stories of women like Craddock/Smith, English and Reynolds4 speak volumes about the past workings of law and society, and the way in which both the law and our society are shaped by wider contextual influences, including the concepts of gender and medicine. Moreover, a detailed analysis of how these cases were decided in the past provides an instructive vantage point, from which to consider the premenstrual defendant’s legal status in the modern context.
Reviewing the main findings from chapter one, it is apparent that previous debate about the premenstrual defendant’s position within the criminal law has been heavily influenced by a set of ideas that go beyond the purely legal. Asking ‘the medical question’5 in relation to the premenstrual defendant presents an overarching picture of ‘a “benign conspiracy” between psychiatrist, defence prosecution and the court’6 to bring vulnerable defendants – or at least those who are deemed to be worthy – within the framework of existing defences wherever possible. Asking the closely associated ‘gender question’7 though, has in the past prompted the candid response that, ‘Feminists the world over are objecting strenuously to the use of PMT as a mitigatory or contributory factor’.8 In fact, caught up as she has been in this precarious juxtaposition, the legal question9 about the premenstrual defendant – and in fact, her own legal story – seems to have become a secondary consideration. Rather, it was a series of socio-political concerns that were the focus for earlier scholarly discussions, with some critics going to the extent of arguing vehemently that there should be no premenstrual defence, no special judicial treatment and no additional consideration given to premenstrual sufferers, even if this ‘implies the (politically uncomfortable) advocacy of severer treatment for women than that which they might currently receive’.10
2 Nicola Lacey, In Search of Criminal Responsibility: Ideas, Interests and Institutions (OUP 2016) ix. 3 Joanne Conaghan, Law and Gender (OUP 2013). 4 R v Craddock (1981) 1 CL 49; R v Smith [1982] CLR 531; R v English (unreported) Norwich Crown Court, 10 November 1981; R v Reynolds [1988] Crim LR 679 (CA Crim Div). 5 Discussed at pp 39-43. 6 Law Commission, Partial Defences to Murder (Law Com No 290, 2004) para 2.34. 7 Discussed at pp 47-51. 8 Susan SM Edwards, Women on Trial: A Study of the Female Suspect, Defendant, and Offender in the Criminal Law and Criminal Justice System (Manchester University Press 1984) 90. 9 Discussed at pp 43-47. 10 Hilary Allen, ‘At the Mercy of Her Hormones: Premenstrual Tension and the Law’ in Parveen Adams and Elizabeth Cowie (eds), The Woman in Question (Verso 1990) 223. 205
Despite the vehement reaction in some quarters, we know from the work set out here that there was still an extensive scholarly debate about the potential of the premenstrual defence. In respect of ‘the legal question’ then, predominantly it was the same refrain that was repeated in the relevant literature. By and large, the focus of most commentators from the time was on a systematic review of the available defences of insanity, automatism, diminished responsibility – or, as the only other alternative, for the issue to be decided as a matter of mitigation during sentencing. Some critics took a more optimistic tone and advanced instead the idea of a special defence for the premenstrual defendant. Each of these approaches though, has been shown to be problematic in its own way. Thus, the conclusion reached in the first chapter of this thesis is that the premenstrual defendant lacks a suitable criminal defence to plead her case in the English criminal courts. Only if a defendant were to commit an act of murder would she have the option of a potentially more appropriate partial defence of diminished responsibility. Otherwise, for those defendants who commit any other lesser crime than murder, there is a significant gap in the appropriate and proportionate defence options that might be available to them. That was the case for the premenstrual defendant nearly thirty years ago – and the situation remains largely the same today
The complexities of the premenstrual defendant’s case do not stop there though. As shown by the nature of the discussion in chapter two, the ‘fact’ of the premenstrual defendant’s premenstrual disorder has been a constant source of controversy throughout this story. Aetiological uncertainty has long been a feature of the history of the premenstrual disorders. Even today, ambiguity and a lack of awareness still plagues this sphere of science and medicine. That said, twentieth century advancements have now given a name to some women’s severe premenstrual suffering: premenstrual dysphoric disorder or PMDD. And the recent discovery of ‘the PMDD gene complex’ can be seen as a key development in this story as well.11 Therefore, as the discussion in chapter two demonstrated, there is now a growing recognition of the premenstrual disorders and the serious impact that premenstrual symptoms can have on a subset of affected women – although there is much work still to be done in terms of a diagnostic test or a cure for the disorder. Does this recognition mean that the premenstrual defendant’s problems have
11 N Dubey and others, ‘The ESC/E(Z) Complex, an Effector of Response to Ovarian Steroids, Manifests an Intrinsic Difference in Cells from Women with Premenstrual Dysphoric Disorder’ (2017) 22 Molecular Psychiatry 1172 206
come to an end then? Arguably, the findings in this chapter would suggest that one aspect of the question has been largely resolved. Following the inclusion of PMDD in both the DSM-512 and the ICD-11,13 then a premenstrual defendant now has a much more solid foundation on which to base her potential criminal defence or her plea in mitigation. That said, there are still a number of issues that have yet to be determined, for example in relation to potential cause and effect, and what might be required as proof of a premenstrual sufferer’s condition. In addition, this clinical recognition of PMDD does not solve the wider problems of how the premenstrual sufferer is viewed in society. Looking more closely at the findings from chapter two, it is apparent that negative conceptions of social constructivism and medicalisation still permeate the ongoing debate about the ‘existence’ of the premenstrual disorders. Moreover, the issue of stigma would appear to be so deep-seated in the premenstrual defendant’s story overall, that displacing all of the different stereotypes and labels that pertain to her status as a ‘premenstrual’ ‘woman’, ‘mentally ill’ and ‘criminally deviant’, might in fact prove much more difficult an undertaking than addressing the question of her criminal responsibility.
What then are the conclusions of this thesis in relation to the idea of criminal responsibility itself? Essentially, this was the main question for the discussion in chapter three.14 Adopting a Laceyan approach to the issue, this enabled a wider analysis of the way in which the criminal law’s responsibility-attribution practices are shaped fundamentally by the conceptual contours of the ideas, interests and institutions of the criminal law’s wider social, political and cultural environment.15 The discussion in this chapter resulted in three important findings – all stemming from Lacey’s hypothesis. First, the way in which the law has developed over the course of its own history suggests that the concept of criminal responsibility is more than a set of profound and immutable legal principles that can be indexed solely to a set of moral norms. Rather, that criminal responsibility as a concept has been fundamentally shaped by its socio-historic context and temporal contingency. Second, that in addition to the established normative foundations of the existing criminal responsibility-attribution practices, arguably there is
12 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-5 (5th edn, American Psychiatric Association 2013); 13 World Health Organization, International statistical classification of diseases and related health problems: ICD-11 (11th Revision, World Health Organization 2019). 14 Nicola Lacey, In Search of Criminal Responsibility: Ideas, Interests and Institutions (OUP 2016. 15 Discussed at pp 118-124. 207
a further ‘socio-institutional basis’16 to the way in which the criminal law operates. And, only by attending to the influence which this socio-institutional basis has on the criminal law’s conceptual framework, ‘can we understand, explain, and even predict the ways in which legal decision-makers interpret and apply the concept’.17 Finally, that whilst the capacity paradigm might have persisted as the ‘core’ idea of criminal responsibility, according to Lacey’s hypothesis of the ‘shifting theories of responsibility over time and space’,18 the idea of character still has a significant role to play in criminal responsibility- attribution practices and wider processes of criminalisation. In this way, Lacey’s conclusions about the co-evolution of capacity and character raise a degree of speculation about the continuing influence of a strongly evaluative and partially character-driven practice of responsibility-attribution. For, if Lacey herself is prompted to reflect on ‘whether either scientific knowledge or moral evaluation of character can provide a stable basis for attributions of responsibility’,19 then potentially this demonstrates the need for a re-think about the remit of responsibility. Arguably, what is required is a more socially realistic theoretical approach to the way in which we go about making responsibility- attribution decisions within the modern criminal justice system.
Based on the research conducted in chapter four, I would argue that nowhere is the need for a socially realistic concept of responsibility-attribution more apparent than in the context of female criminal responsibility decisions. Given the way in which the trials of women are so often turned into ‘trials of their character’,20 then it is clear that the criminal law needs to re-evaluate the way that it responds to the female characters who are subject to its operation and regulation. Historical and contemporary accounts of the characterisation of female actors of the criminal law present a complex picture, not least in terms of the legal agency and subjecthood of these women. Consistently, mainstream legal scholarship subscribes to the view that ‘gender plays little or no role in the conceptual make-up, normative grounding, or categorical ordering of law’.21 Yet, when we look more closely at the operation of substantive legal defences like infanticide and
16 Lacey (n 14) 187. 17 Ibid 187. 18 Ibid 186-7. 19 (emphasis original) Nicola Lacey, ‘Psychologising Jekyll, Demonising Hyde: The Strange Case of Criminal Responsibility’ (2010) 4 Criminal Law and Philosophy 109, 111. 20 Donald Nicolson, ‘Criminal Law and Feminism’ in Donald Nicolson and Lois Bibbings (eds), Feminist Perspectives on Criminal Law (Cavendish Publishing 2000) 16. 21 Conaghan (n 3) 5. 208
diminished responsibility, gender is all too apparent. Assessing the premenstrual defendant’s status in the light of the confused picture of female criminal responsibility that emerges from the research in chapter four, the conclusion reached here is that a gender-specific defence would not provide an appropriate legal solution for her at this time. That said, this area of research is still a fruitful avenue of exploration to pursue. Therefore, arguably, the account that I have given of the premenstrual defendant as a woman within the criminal law opens up a theoretical space to continue to explore her identity as a female character of the criminal law, and to assess to a greater extent, not only ‘what impact have ideas of responsibility had on women, but what impact has the idea of women, the idea of gender itself, had on the idea of responsibility?’22 Potentially, this concept of the female character of the criminal law – and how she fits into established ideas about capacity and character in criminal responsibility-attribution practices – is something that could be developed to a much greater degree elsewhere.
Here though – turning away from the idea of a gender-specific premenstrual defence – in the final chapter of this thesis I redirected the focus to explore an alternative legal excusatory defence mechanism for the premenstrual defendant. Specifically, this was my proposal for a new category of partial excuse, derived from the concept of mitigation. This is an idea that is supported by existing scholarly conceptions of the partial defences,23 but one that has not previously been suggested in the form of ‘Mitigated Criminal Liability’ that I argue for in this thesis. Situating my proposition within the context of current research which already demonstrates that the existing mental disorder defences are outdated and arguably unfit for purpose in the modern context,24 in this chapter I suggested that my proposal could be drawn into the ongoing debate about the wider reform of these defences. The idea of mitigated criminal liability is a newly formulated concept, but there is a significant advantage to this proposal in that it has the potential to operate as a partially exculpatory criminal defence within the existing legal framework. Arguably, it also advances the debate about potential reform in that it does not rely on a defendant experiencing a total lack of capacity in order to plead the defence – unlike the
22 Sharon Cowan, ‘In search of connections: Reading between the lines of Nicola Lacey’s In Search of Criminal Responsibility’ (2017) 4(2) Critical Analysis of Law, 211, 217 (emphasis original). 23 Martin Wasik, ‘Partial Excuses in the Criminal Law’ (1982) 45 Modern Law Review 516; Stephen J Morse, ‘Diminished Rationality, Diminished Responsibility’ (2003) 1 Ohio State Journal of Criminal Law 289; D Husak, The Philosophy of Criminal Law (OUP 2010) 312. 24 David Ormerod, ‘The Law Commission’s Proposals for the Reform of the Defences of Insanity and Automatism’ (2015) 55 Medicine, Science and the Law 156. 209
Law Commission’s current proposal for a defence of ‘not criminally responsible by reason of recognised medical condition’.25 Not only might this help to address the position of the premenstrual defendant within the criminal law, but it could prove to be a valuable, pragmatic and proportionate option for a number of other defendants who are themselves able to satisfy the requirements of a partial defence of ‘Mitigated Criminal Liability’.
At the outset of this thesis, I said that my aim was to tell the story of the premenstrual defendant. Here, I have come to a natural conclusion for this part of her story. But clearly, there is much more to say about the narrative that has been set out here. Arguably, many questions still remain – for example, about the premenstrual defendant’s gendered identity in the law, some of the medicalised aspects of her story and her stigmatised status within both law and society. All of these are significant issues that still require some consideration within the context of the premenstrual defendant’s story overall – and all are factors that offer potential avenues for further research. For the time being though, I have accomplished what I set out to do in this thesis. That has been to highlight the importance of paying attention to the individual stories within the narratives that are central to legal discourse. Arguably, what needs to happen next is for the law to learn how to respond to the story which has been told here about one important individual in particular – that is, the premenstrual defendant.
25 Law Commission Discussion Paper, Criminal Liability: Insanity and Automatism (Law Commission 2013). Discussed in David Ormerod, ‘The Law Commission’s Proposals for the Reform of the Defences of Insanity and Automatism’ (2015) 55 Medicine, Science and the Law 156. 210
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Newspaper and Online Reports
Andersen CH, ’11 Women with PMDD Share What It’s Really Like’
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Reports, Consultation Papers and Guidelines
Criminal Law Revision Committee, Fourteenth Report of the Criminal Law Revision Committee on Offences Against the Person (1980) Cmnd 7844, London: HMSO Home Office, Report of the Committee on Mentally Abnormal Offenders (1975) Cmnd 6244 London: HMSO (Butler Report) Home Office, The Corston report: a report by Baroness Jean Corston of a review of women with particular vulnerabilities in the criminal justice system, The need for a distinct, radically different, visibly-led, strategic, proportionate, holistic, woman-centred, integrated approach (2007) London: HMSO (Corston Report) Law Commission, Partial Defences to Murder (2004) Law Com 290, London: Law Commission Law Commission, A New Homicide Act for England and Wales (2005) Law Com No 177, London: Law Commission Law Commission, Murder, Manslaughter and Infanticide (2006) Law Com No 304, London: Law Commission Law Commission Discussion Paper Criminal Liability: Insanity and Automatism (2013) London: Law Commission Law Commission, Unfitness to Plead (2016) Law Com No 364, Volume 1: Report, Volume 2: Draft Legislation, London: Law Commission
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Cases and Legislation England & Wales and Scotland:-
R v Ahluwalia [1992] 4 All ER 889 R v Airey, unreported, CA 08/11/96 B v DPP (1998) 4 All ER 265 R v Beer [1985] Lexis Citation 312 R v Campbell [2006] EWHC 368 R v Challen [2019] EWCA Crim 916 R v Craddock 1 Current Law Jan 1981 49 DPP v Morgan (1976) AC 182 R v English (unreported) Norwich Crown Court, 10/11/1981 R v Golds [2016] UKSC 61 R v Gore (Lisa Therese) (Deceased) [2007] EWCA Crim 2789 (CA) Re H [1990] 1 FLR 441 R v Hardie [1984] 3 All ER 848 Hill v Baxter [1958] 1 QB 277 R v Hughes [2015] EWCA 2514 R v Humphreys [1995] 4 All ER 1008 R v Kai-Whitewind [2005] EWCA Crim 1092 R v Kingston [1994] 3 All ER 353 (HL), [1993] 4 All ER 373 (CA) R v Knight (unreported) CA 16/01/98 LT v HM Advocate 1990 SCCR 540 M’Naghten’s Case (1843) 10 Clark and Finnelly 200, 210, (1843) 8 ER 718 [1843-60] All ER Rep 229 R v Morris (1987) 9 Cr App R 528 R v Quick [1973] QB 610 R v R [1991] 2 WLR 1065 R v Reynolds [1988] Crim LR 679 R v Richardson [2001] EWCA Crim 612 R v Smith (1982) CLR 531 R v Reynolds [1988] Crim LR 679 R v T [1990] Criminal LR 256
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R v Thornton [1992] 1 All ER 306 R v Thornton (No 2) [1996] 2 All ER 1023 Scott v Hamilton 1988 SCCR 262 Thomas v Lowe 1991 SCCR 943
Other Jurisdictions:-
Commonwealth Dept of Transportation v Grass 595A 2d 789 (Pa Cmwlth 1991) Commonwealth v Richter No T90 215256 (Fairfax Co Gen Dist Ft 4 June 1991) People v Santos No 1K046229 of 1981 (New York Kings County Criminal Court, plea entered 03/11/1982) State v Lashwood 384 NW 2d 319 (SD 1986)
Acts of Parliament:- Coroners and Justice Act 2009 Criminal Justice Act 1967 Homicide Act 1957 Infanticide Act 1938
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